Highland Enterprises, LLC

Plain-English summary

Highland Enterprises operated a portable crushed-stone plant at the Mt. Solo Pit and contested five citations involving a work platform, conveyor pulleys, a bulldozer fan, and missing rear lights. Judge Thomas P. McCarthy affirmed an S&S handrail violation because tying off did not replace the separate requirement to provide handrails on a work platform, and he assessed $585. He also affirmed a non-S&S guarding violation at the No. 10 conveyor with a $176 penalty and a non-S&S rear-light violation with a $100 penalty. The Judge affirmed guarding violations at the No. 7 conveyor and bulldozer fan but reduced negligence from moderate to low based on restricted access, training, existing barriers, and a good-faith belief about the fan's manufacturer-designed opening, reducing each penalty to $65. Those five litigated citations produced $991 in penalties. He separately approved settlements covering the remaining citations in the three dockets for $1,747.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.11027, 56.14100(b), 56.14107(a), and 56.15005
• Outcome: Five litigated citations were affirmed, two with negligence reduced to low, for $991; settlements resolving the remaining citations were approved for $1,747.
• Key point: Using fall-protection lines does not excuse missing platform handrails, while credible access restrictions and design-based misunderstandings can mitigate negligence for guarding violations.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, NW, SUITE 9500

WASHINGTON, DC 20001-2021

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

July 13, 2012

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Petitioner

v.

HIGHLAND ENTERPRISES, LLC,

Respondent

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CIVIL PENALTY PROCEEDINGS

Docket No. WEST 2009-1213-M

A.C. No. 10-01911-187445

Docket No. WEST 2010-405-M

A.C. No. 10-01911-205342

Docket No. WEST 2011-261-M

A.C. No. 10-01911-237626

Mine: Mt. Solo Pit

DECISION AND ORDER

Appearances: Emily B. Hays, Esq., Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado for Petitioner

Don Blewett, pro se, Highland Enterprises, LLC, Grangeville, Idaho for
Respondent

Before: Judge McCarthy

I. Statement of the Case

These cases are before me on petitions for assessment of civil penalties filed by the
Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration
(MSHA), against Highland Enterprises, LLC (Respondent), 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).
Five 104(a) citations remain at issue.

An evidentiary hearing was held in Moscow, Idaho. The parties introduced testimony and
documentary evidence, and witnesses were sequestered. On the entire record, including my
observation of the demeanor of the witnesses,

and after considering the post-hearing briefs, I
make the following:

II. Factual Background

A.        Stipulated Facts 

The parties stipulated to the following facts, which were received into evidence as Joint
Ex. 1.

Tr. 10-11.      

1. These dockets involve a surface crushed and broken-stone mine known as the Mt.
   Solo Pit, which is owned and operated by Respondent.

2. The mine location changes. When the citations in the above-captioned dockets were
   issued, the mine was located near Lewiston, Idaho.

3. The mine, MSHA ID 10-01911, is subject to the jurisdiction of the Federal Mine
   Safety Act and Health Act of 1977 (the Mine Act), 30 U.S.C. §§ 801 through 965.

4. The Administrative Law Judge has jurisdiction over these proceedings pursuant to

§ 105 of the Mine Act.

5. Respondent is an operator as defined in section 3(d) of the Mine Act, 30 U.S.C.

§ 803(d).

6. Respondent is engaged in mining operations in the United States and its mining
   operations affect interstate commerce.

7. Kenneth Poulson and Scott Amos are authorized representatives of the United States
   Secretary of Labor assigned to MSHA’s Boise, Idaho field office and were acting in an
   official capacity when the citations were issued.

8. Respondent demonstrated good faith in abating the violations at issue in these dockets.

B.        Findings of Fact and Conclusions of Law Regarding Unsettled Citations

1.         Docket No. WEST 2009-1213-M

a.         Citation 6475792

Citation 6475792 alleges that Respondent violated 30 C.F.R. § 56.11027 by failing to
provide a handrail on a work platform at the portable crusher plant. The cited standard at 30
C.F.R. 56.11027 provides that “[s]caffolds and working platforms shall be of substantial
construction and provided with handrails and maintained in good condition . . . .” The citation
alleges the following condition or practice:

There were no handrails provided on the elevated work platforms for the cedar
rapids roll crusher on both sides. The work platform measures approximately 50
inches above the ground. The work platform was approximately 24 inches wide
and 9 feet long. There were sets of access steps provided on both sides to access
the work platform. Miners would access this area to perform maintenance work
as needed. This condition exposes persons to serious fall related injuries.

The violation is alleged to be significant and substantial (S&S),

with gravity alleged to
be reasonably likely to result in lost workdays or restricted duty, and one person affected.
Negligence is alleged as moderate. The Secretary proposes a penalty of $585.00.

On April 14, 2009, MSHA inspector Kenneth Poulson

inspected Respondent’s roll
crusher at the Lewiston, Idaho location and issued the instant citation because an alleged work
platform did not have handrails. Tr. 117-18; P. Ex. 4, pp. 5-6. Respondent argues that the cited
area is a trailer fender, not a work platform, and the fender is required by the Department of
Transportation for safety during transport. Respondent further argues that inspector Poulson
conceded that there would be no violation if Respondent’s miners tied off when using the alleged
platform (Tr. 165-170), and the testimony of Respondent’s foreman, Colby Blewett, established
that Respondent did so. R. Br. at 2; Tr. 355, 398, 408-09.

At the hearing, Colby Blewett admitted that the cited area was used on rare occasions as a
work platform. See Tr. 345-355, 408-09. It is undisputed that the work platform had no
handrails. Tr. 117; P. Ex. 4, pp. 5-6.

Blewett further testified, however, that Respondent’s miners always tied off with a one-foot lanyard, and he informed inspector Poulson of this practice. See Tr. 345-55, 408-09. By
contrast, inspector Poulson testified that Blewett told him during the inspection that Respondent
did not use the cited area as a work platform, and if Respondent needed to access the area, it
would use a ladder. Tr. 129-130. Poulson testified that the issue of tying off was not broached
by Blewett. Tr. 170.  

R. Ex. 1, an April 21, 2009 letter to the MSHA Conference and Litigation Representative,
contesting the violations in Docket 2009-1213, does not mention the tie-off rationale as a basis
for the contest of this citation. There is no mention of tying off or using a safety lanyard in the
letter. Rather, Respondent states in said letter that the platform was not a work platform and that
“no maintenance work” was done on the platform. As noted, Blewett’s admission at trial
established that this was not the case. In these circumstances, I credit Poulson that the “tying off”
defense was not raised before trial. Rather, it was developed at trial, is unsupported by
Respondent's own prior statements, and I give it little weight.

Section 56.11027 unambiguously requires working platforms to have handrails. The
standard has no provision exempting a work platform from the handrail requirement because
miners allegedly tie off when accessing the platform. The standard covering “tie offs” is set forth
in 30 CFR § 56.15005. It provides: “[s]afety belts and lines shall be worn when persons work
where there is danger of falling.” Section 56.15005 does not provide any exemption from
required safety lines when a handrail is in place. The standards are mutually exclusive. See
Northwest Aggregates, 20 FMSHRC 518, 525-526 (May 1998)(ALJ Manning). To the extent
that inspector Poulson testified to the contrary at trial (Tr. 166-69), I agree with the Secretary that
such testimony represents a misunderstanding of Commission case law.

In short, even the alleged use of safety lines where there is a danger of falling does not
obviate the requirement for handrails on work platforms under the cited standard. Accordingly, I
find that Respondent violated 30 C.F.R. § 56.11027 by failing to provide handrails on the work
platform on the roll crusher.  

The citation was terminated when Respondent chose to cut off the platform, after
receiving MSHA approval, because it was the quickest and easiest way to get back to work and
fill production orders. Tr. 130, 133, 348-349. Therefore, I reject Respondent’s argument that
MSHA is financially responsible for re-installing the work platforms. Although I receive R. Ex.
3 into evidence, I find that this estimate of $600.00 to re-weld the work platform back on the roll
crusher is immaterial. I conclude, contrary to Respondent’s argument, that MSHA is not
responsible to compensate Respondent for such cost.

I also find that the failure to place handrails on the work platform was S&S. The Mine
Act defines an S&S violation as one “of such nature as could significantly and substantially
contribute to the cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. §
814(d)(1). A violation is S&S “if, based on the particular 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.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
To establish an S&S violation under National Gypsum, the Secretary must prove the four
elements of the Mathies test: (1) the underlying violation of a mandatory safety standard; (2) a
discrete safety hazard – that is, a measure of danger to safety – contributed to by the violation; (3)
a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a reasonably serious nature. See Mathies Coal
Co., 6 FMSHRC 1, 3–4 (Jan. 1984) (footnote omitted); accord Buck Creek Coal v. MSHA, 52
F.3d 133, 135 (7th Cir. 1995) (recognizing wide acceptance of Mathies criteria); Austin Power,
Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving use of Mathies criteria). An
evaluation of the reasonable likelihood of injury is made assuming continued normal mining
operations. U.S. Steel Mining Co. (U.S. Steel III), 7 FMSHRC 1125, 1130 (Aug. 1985) (quoting
U.S. Steel Mining Co. (U.S. Steel I), 6 FMSHRC 1573, 1574 (July 1984)).

The third element of Mathies, which requires “a reasonable likelihood that the hazard
contributed to will result in an injury,” is often the most difficult element for the Secretary to
establish under the Mathies test. See U.S. Steel Mining Co. (U.S. Steel IV), 18 FMSHRC 862,
870 (June 1996) (Marks, Comm’r, concurring in result) (observing that during the 12-year period
immediately following Mathies, over 93% of the Commission’s 47 decisions involving an S&S
issue concerned the third element). In U.S. Steel IV, the Commission held that “the third element
of the Mathies test does not require the Secretary to prove it was ‘more probable than not’ an
injury would result.” 18 FMSHRC at 865 (citation omitted).

At the same time, the Commission has long held that “[t]he fact that injury [or a condition
likely to cause injury] has been avoided in the past or in connection with a particular violation
may be ‘fortunate, but not determinative.’” U.S. Steel IV, 18 FMSHRC at 867 (quoting
Ozark-Mahoning Co., 8 FMSHRC 190, 192 (Feb. 1986)). See Elk Run Coal Co., 27 FMSHRC
899, 906–07 (Dec. 2005) (holding that absence of adverse roof conditions at time of or prior to
violation does not preclude establishing S&S violation); Blue Bayou Sand & Gravel, Inc., 18
FMSHRC 853, 857 (June 1996) (noting that absence of accidents involving violative equipment
does not preclude S&S finding).

The Commission recently reiterated these principles in Cumberland Coal Resources, LP,
2011 WL 5517385 (Oct. 5, 2011),

and Musser Engineering, Inc., 32 FMSHRC 1257 (Oct.
2010). The Commission emphasized that the test under the third prong of Mathies is whether the
hazard fostered by the violation is reasonably likely to cause injury, not whether the violation
itself is reasonably likely to cause injury. Cumberland Coal Res., 2011 WL 5517385, at *5;
Musser, 32 FMSHRC at 1280–81, citing Elk Run Coal and Blue Bayou Sand & Gravel, supra.

Applying these principles, I have found the underlying violation of a mandatory safety
standard. I also find that the missing handrails, which protect persons from falls, created a
discrete fall hazard or measure of danger to safety. With respect to the third and fourth Mathies
elements, the Secretary has established that the fall hazard was reasonably likely to cause injury
and that such injury would be of a reasonably serious nature. In this regard, I give substantial
weight to Poulson’s testimony that even a one-time exposure to the hazard was too great as it was
reasonably likely that a miner working off the platform, which lacked handrails and was 50
inches off the ground person would easily fall off either backwards or forwards and receive
serious injuries, such as a broken leg, resulting in lost work days or restricted duty. Tr. 120, 127.
The record further establishes that miners are exposed to the fall hazard when they access the
work platform to adjust a bolt holding tension on the roll crusher (Tr. 121, 125-26; P. Ex. 4, p.
6), or to work on the electrical motor, wiring, v-belt, pulleys, trough and rollers, and Marco cans.
Tr. 119-20, 347, 350, 354-55. Given these reasons for miners accessing the work platform, and
given Poulson’s testimony concerning the serious injury likely to result from a fall from the
platform, the Secretary has established the third and fourth element of the Mathies test and
shown that the violation is S&S.

I further find that the failure to place handrails on the work platform was the result of
Respondent's moderate negligence.

I have credited inspector Poulson’s testimony that the only
mitigating factor that Respondent offered during the inspection was that the cited platform was
not a work platform, when Blewett, in fact, knew that he had used the platform for work
purposes based on his inconsistent trial testimony. Moreover, I have found that Respondent’s
alleged tying-off policy, even if credible, is not a substitute for handrails, and I note that even
trained employees violate established company policy. See Tr. 192. In these circumstances, I
conclude that Respondent has not shown considerable mitigating circumstances sufficient to
establish low negligence. Accordingly, I affirm inspector Poulson’s designation of negligence as
moderate. In sum, Citation 6475792 is affirmed, as written.

I next address the appropriate penalty. A mine operator is subject to a civil penalty for
any violation occurring at its mine. 30 U.S.C. § 820. Such penalties provide a “strong incentive
for compliance with the mandatory health and safety standards.” Nat'l Independent Coal
Operators' Ass'n v. Kleppe, 423 U.S. 388, 401 (1976). In enacting the Mine Act, Congress aimed
to set sufficiently high penalties to effect deterrence. “To be successful in the objective of
including [sic] effective and meaningful compliance, a penalty should be of an amount which is
sufficient to make it more economical for an operator to comply with the Act's requirements than
it is to pay the penalties assessed and continue to operate while not in compliance.” S. Rep. No.
95-181 at 90 (1977).

The Court has broad discretion to assess penalties de novo. See, e.g., Spartan Mining
Co., 2008 WL 4287784 at *22 (2008) (affirming ALJ's 800 percent increase of proposed penalty
based upon gravity and negligence factors); Mountain Edge Mining, Inc., Docket No. WEVA
2009-1617 (ALJ, May 19, 2011) (imposing a penalty amount eight times that originally assessed
by MSHA). In assessing penalties, the Commission and its judges must “consider the operator's
history of previous violations, the appropriateness of such penalty to the size of the business of
the operator charged, whether the operator was negligent, the effect on the operator's ability to
continue in business, the gravity of the violation, and the demonstrated good faith of the person
charged in attempting to achieve rapid compliance after notification of a violation.” 30 U.S.C. §
820(i).  

I have reviewed the Certified Assessed Violation History Reports in the record.
Respondent has about 18 paid violations, three of which were issued as S&S, at the Mt. Solo Pit
Mine during the 24 months preceding April 4, 2009. Respondent is a small mine operator. The
violations herein were abated in good faith. Respondent does not argue that the penalties
proposed will have an adverse effect on Respondent’s ability to remain in business, and two of
the proposed have penalties at issue herein have been slightly reduced. My gravity and
negligence findings for each violation are discussed herein. Accordingly, applying the penalty
criteria set forth in section 110(i), I find that the proposed penalty of $585.00 is appropriate for
the violation set forth in Citation 6475792.

b.        Citation 6475793

Citation 6475793 alleges that Respondent violated 30 C.F.R. § 56.14107(a) by failing to
guard the #10 conveyor head pulley on the roll crusher. The cited standard at 30 C.F.R. §
56.14107(a) 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 citation alleges the
following condition or practice:

The #10 conveyor head pulley drive v-belts and sheaves was not guarded on the
backside to prevent accidental contact with the moving machine parts. The v-belts
and sheaves were approximately 42 inches above the work platform deck. The v-belts and sheaves were provided with guarding on all sides except the back side.
This area would be accessed on an as needed basis to perform maintenance work.
This condition exposes persons to serious injuries should they accidentally contact
the moving machine parts.

The violation is alleged to be non-S&S, with gravity alleged to be unlikely to result in an
injury or illness that could reasonably be expected to result in a permanently disabling injury, and
one person affected. Negligence is alleged as moderate. The Secretary proposes a penalty of
$176.00.

Respondent argues that there is no access to the cited area while equipment is running and
that all equipment must be shut down before an employee could be within close range of the head
pulley. Respondent further asserts that the pulley had never been cited before,

and it is more
than seven feet above a walkway. R. Br. at 2.

During his April 14, 2009 inspection of the # 10 conveyor head pulley, Poulson observed
that the back side of the area containing the head pulley components (v-belt, pulleys on the drive
motor, and sheaves) for the No. 10 belt was not guarded. Tr. 139; P. Ex. 5. Head pulley
components are moving parts that present an entanglement hazard and risk of injury. Tr. 142; P.
Ex. 5, p. 1. Respondent admits that the head pulley components were not guarded on the back
side. Tr. 409. In addition, Respondent admits that the plant had operated the day prior to the
inspection (Tr. 397), and that the roll crusher, including the head pulley components, had been in
the identical condition since March 24, 2009. Tr. 357-58. Accordingly, because Respondent
admitted to operating the #10 conveyor head pulley in the cited condition, I find the violation of
30 C.F.R. § 56.14107(a).

The citation was terminated by the termination of the previous citation, Citation 6475792.
That is, by removing the work platform, the head pulley components were more than seven feet
above ground with no intermediate platform to stand on, and, therefore, no longer required
guarding. Tr. 146; P. Ex. 5, p. 5.

I further find that the citation is non-S&S,

and the result of Respondent's moderate
negligence. Inspector Poulson recognized that the failure to guard the back side of the head
pulley was unlikely to cause an injury because of infrequent access while the equipment was
running, but he also recognized that any such injury was reasonably likely to be permanently
disabling. Tr. 143. Thus, even though the exposure was minimal, a permanently disabling
entanglement hazard was present.

I find that negligence was designated properly as moderate. Poulson credibly testified
that Respondent should have known about the unguarded back side of the head pulley
components (Tr. 143), and Respondent admitted to accessing the work platform (while allegedly
tied off), but also admitted that there was a hazard if one was standing on the work platform
without the conveyor being locked and tagged out. Tr. 354-55. The head pulley was accessible
from the work platform and Respondent used the work platform to access it. In these
circumstances, I again conclude that Respondent has not shown considerable mitigating
circumstances sufficient to establish low negligence. Accordingly, I affirm inspector Poulson’s
designation of negligence as moderate.

In sum, Citation 6475793 is affirmed, as written. Applying the penalty criteria set forth in
section 110(i) and outlined above, I find that the proposed penalty of $176.00 is appropriate.

2.         Docket No. WEST 2010-405-M

a.         Citation 6483469  

Citation 6483469 alleges that Respondent violated 30 C.F.R. § 56.14107(a) by failing to
guard the head pulley on the #7 conveyor belt. The cited standard is set forth above. The citation
alleges the following condition or practice:

The head pulley of the #7 belt on the screen plant was not guarded on the side. The
head pulley was approximately 1 foot above and 20 inches away from the end of the
walkway. Miners access this area for maintenance work on occasion. Contact with
head pulley would result in entanglement type injuries.

The violation is alleged to be non-S&S, with gravity alleged to be unlikely to result in an
injury or illness that could reasonably be expected to result in a permanently disabling injury, and
one person affected. Negligence is alleged as moderate. The Secretary proposes a penalty of
$100.00.  

Respondent argues that this area was guarded, pursuant to the directions of a previous
inspector, when a chain was installed at the end of the walkway, and the area passed all
subsequent inspections prior to the instant one. Respondent further argues that no access is
allowed in the area when the crusher is operating. Rather, the cited area is only accessed during
shut down for maintenance or repair, thus precluding access to the head pulley when equipment
is moving. R. Br. at 2-3.

During his October 20, 2009 inspection

of the #7 conveyor belt, Poulson observed that
the head pulley of the # 7 belt at the screen plant was not guarded on the side. Tr. 182; P. Ex. 12,
pp. 1 and 4. Respondent admits that the cited pulley was not guarded (Tr. 411), but disputes that
the cited pulley needed guarding. Tr. 358, 413. In this regard, Respondent first argued that the
pulley did not require a guard because it was more than seven feet in the air. Tr. 358. The record
establishes, however, that the walkway that accessed the pulley was eight feet above the ground.
Tr. 359. The pulley itself was approximately one foot above that walkway. P-12, p. 1. As
discussed previously, section 56.14107(b) states that guards are not required where the exposed
moving parts “are at least seven feet away from walking or working surfaces.” 30 C.F.R.
56.14107(b). Because the pulley was within one foot of a walkway, guarding was required.

Respondent also argues that guarding was not necessary because mine policy prohibited
access while the plant was running. Tr. 360. The walkway that accesses the pulley, however,
remained in place at all times. Tr. 411. Placing a ladder by the elevated walkway is all that was
required for access. Tr. 412. In addition, the record confirms that there was considerable work to
be done via the walkway. Miners use it to access the screens and the screen decks. Miners often
repair holes in screens, or change screens depending upon the size of the product they are
crushing. Tr. 185, 360. Miners also access the elevated walkway to ensure that the screen boxes
have an oil lubricated bath, or to repair wires when a large rock is crushed. 186-87, 360-61.

The unguarded pulley was “finned,” as opposed to smooth, and the finned nature of the
pulley heightened the hazard because it could “grab” an exposed miner more easily than a
smooth pulley. Tr. 184. Most likely one miner at a time would be exposed to the hazard. Tr.

187. The pulley had operated in the same unguarded condition at its previous Lewiston, Idaho
     location. Tr. 413-14. Respondent does not contend that it failed to run the unguarded pulley
     while the plant was operating. Tr. 412-413. Rather, the record establishes that the plant was
     running the day of the inspection, prior to MSHA’s arrival. Tr. 188-89.

The unguarded pulley was located approximately 20 inches from the end of an elevated
platform walkway (“walkway”). Tr. 185-87. Inspector Poulson testified that the chain in the
photograph (P. Ex. 12, p. 4) was is present as fall protection from the elevated walkway and was
not a substitute for a guard. Tr. 186. The proximity of the unguarded pulley to the walkway
placed miners at risk of a slip, trip or fall entanglement injury that could be permanently
disabling. Inspector Poulson determined that a miner was unlikely to be injured by the cited
condition, however, because miners did not frequently access the walkway while the plant was
operating. Tr. 189.

Given the unlikely risk of injury, Inspector Poulson gave Respondent 24 hours to
terminate the citation. Tr. 193; P-12, p.1. When Poulson returned the next day (October 21,
2009) to terminate the citation, the mine was preparing to move its location. Tr. 193. After
confirming that the plant moved, Poulson terminated Citation 6483469 on October 22, 2009. Tr.
194.  

Because the head pulley of the #7 belt on the screen plant was not guarded on the side,
thereby creating a hazard that could cause a entanglement injury, I find that Respondent violated
30 C.F.R. § 56.14107(a). I find that the failure to guard the head pulley of the #7 belt was
designated properly as non-S&S. I have no authority to modify the citation to S&S. See
Mechanicsville Concrete, Inc., t/a Materials Delivery, 18 FMSHRC 877, 880 (June 1996). Even
though the exposure was minimal, a permanently disabling entanglement hazard existed. Each
time a miner accessed the walkway when the plant was running, he was exposed to the
entanglement hazard.

I reduce the negligence, however, from moderate to low. I credit Respondent’s
testimony that employees were trained not to access the walkway when the plant was running. I
further note that the cited area was chained off at the end of the walkway. I conclude that
Respondent has not shown considerable mitigating circumstances sufficient to establish low
negligence.  

In sum, Citation 6475793 is affirmed, as modified, to reflect low negligence. Applying
the penalty criteria set forth in section 110(i) and outlined above, I reduce the proposed penalty of
$100.00 to $65.00.

b.        Citation 6483473

Citation 6483473 alleges that Respondent violated 30 C.F.R. § 56.14107(a) by failing to
guard the fan blade on the bulldozer. The cited standard is set forth above. The citation alleges
the following condition or practice:  

The fan blade, v-belts and sheaves located on the engine of the CatD9H Dozer,
SN 90V1009, are not properly guarded to protect persons from accidental contact
with the moving machine parts. The fan is missing a section of guard on one side.
The hazards are located inside the engine compartment and next to the tracks of
the dozer. Persons are occasionally in the area exposing them to entanglement
injuries.

The violation is alleged to be non-S&S, with gravity alleged to be unlikely to result in an
injury or illness that could reasonably be expected to result in a permanently disabling injury, and
one person affected. Negligence is alleged as moderate. The Secretary proposes a penalty of
$100.00.

Respondent argues that the dozer is equipped with a reversible fan and that access to the
cited area is required to reverse the fan and make air flow through the radiator more effective
during certain times of the year. Respondent further argues that the models of dozers equipped
with a reversible fan did not have fan guards installed in the cited area in order to permit an
operator to reverse the fan, as needed. Respondent also notes that the cited area is so far down
in the engine compartment that the inspector’s pictures taken with a digital camera would not
turn out. R. Br. at 2.

On October 20, 2009, Inspector Poulson inspected the Cat D9H Bulldozer head pulley.
Tr. 223; P. Ex. 16, p. 1. Respondent operated the secondary dozer in question during the
production of gravel and Anti-Skid, because the primary dozer had been buried in a landslide.
Tr. 224-25, 376-77. The guard on the fan blade on the engine was missing a pie-shaped piece,
which exposed v-belts and sheaves. Tr. 227; P. Ex. 16, pp. 1 and 3.

Although the Secretary claims that Respondent admitted that the fan blade on the dozer
engine was missing a portion of the guard (citing Tr. 375, 429), Colby Blewett qualified his
testimony by noting that the manufacturer makes a gap in the guarding so one can reverse the fan
blades to turn the heater on. Tr. 375-76. Blewett explained that there is no cab in older dozers,
so Caterpillar designed a “high-tech heater by simply reversing the fan blades that typically blew
through the radiator to cool the engine off. . . .” Blewett further testified that the cited area was
very difficult to get to, and one would have to pull other guarding off to lay down and reach in to
reverse the blades. Tr. 375-429. 

The portion of the fan blade which is unguarded is located inside the engine compartment
and next to the tracks of the dozer. P. Ex. 1. A dozer operator occasionally would be exposed to
an entanglement hazard as the miner entered or exited the dozer, or checked the engine while
running, should the miner contact the moving v-belts and sheaves. Tr. 225-27; P. Ex. 16, p. 1.
Moreover, a dozer operator who stumbled, fell or tripped over the three-inch lugs on the track,
could stick his hands into the unguarded fan blade, and suffer a permanently disabling injury of
the hand or fingers. Tr. 227. Inspector Poulson determined, however, that it would be unlikely
for a miner to be injured because most of the guard was present. Tr. 226. Due to the unlikely
risk of injury, Poulson terminated the citation on October 22, 2009, when the plant shut down
and moved. P. Ex. 16, p. 2.

I find that Respondent violated 30 C.F.R. § 56.14107(a) because a portion of the fan
blade on the Cat D9H Bulldozer was not guarded, thereby creating a hazard that could cause an
entanglement injury. An operator is strictly liable under the Mine Act for exposing a miner to
the hazard notwithstanding any manufacturing design flaw. I further find that the failure to
guard the dozer's fan blade was non-S&S. As Inspector Poulson recognized, the failure to
adequately guard the fan blade was unlikely to cause an injury because most of the guard was
present, but any injury would be reasonably likely to be permanently disabling. Tr. 226.   Thus,
even though the exposure was minimal, a hazard with the potential of a reasonably serious and
permanently disabling injury was present.

Based on Colby Blewett’s testimony, however, I find that Respondent in good-faith
believed that Caterpillar manufactured the dozer fan blade with a gap in the guarding so that one
could reverse the fan blades to turn on the heater. Moreover, this dozer was an older model used
on a secondary basis, and this violation apparently not been cited previously. In these
circumstances, I conclude that Respondent has shown considerable mitigating circumstances and
I reduce Respondent’s negligence from moderate to low.

In sum, Citation 6475793 is affirmed, as modified, to reflect low negligence. Applying
the penalty criteria set forth in section 110(i) and outlined above, I reduce the proposed penalty of
$100.00 to $65.00.

c.         Citation 6483474

Citation 6483474 alleges that Respondent violated 30 C.F.R. § 56.14100(b) by failing to
maintain and correct the rear-facing flood lights on its dozer. The cited standard provides,
“[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 citation alleges the following
condition or practice:

The Cat D9H Dozer, SN 90V1009, does not have rear facing flood lights. The lights
have been removed and not replaced. The dozer operates on a daily basis at the feed
end of the plant away from other equipment. This condition exposes the operator to
injuries due to visibility issues in inclement weather when lighting is necessary.

The violation is alleged to be non-S&S, with gravity alleged to be unlikely to result in an
injury or illness that could reasonably be expected to result in lost work days or restricted duty,
with one person affected. Negligence is alleged as moderate. The Secretary proposes a penalty
of $100.00.  

Respondent argues that its plant operated only during daylight hours and that any
inclement weather sufficient to darken the sky would result in a complete shutdown of the small
crusher operation due to safety concerns for crew members. R. Br. at 2.

During Inspector Poulson's inspection of the dozer discussed above (see Citation
6483473), Poulson observed that the dozer lacked rear-facing floodlights. Tr. 223; P. Ex. 17, p.

1. Poulson testified that the wiring was still there, but the lights had been broken or were missing
   and had bot been replaced. Tr. 236. Poulson testified that because the dozer was initially
   manufactured with rear-facing floodlights, the lights constituted safety equipment that must be
   maintained under the cited standard. Tr. 235-36.

Poulson further testified that Respondent's failure to correct this condition exposed the
dozer operator, and any miners in the dozer's path, to a collision hazard, particularly during dusty,
rainy, snowy or dark conditions when visibility was impaired. Tr.234, 237-38. Inspector
Poulson recognized that any injury would be reasonably serious and anyone working at the mine
site was exposed to the hazard in the event that the dozer was backing up and collided with a
miner that the operator did not see, due to poor visibility. Tr. 238. He found it most likely that
only one miner would be affected at a time, although he noted that the dozer operator was also
exposed to the hazard. Tr. 238, 240. For example, if the dozer operator was backing up and
could not see properly, he could hit something and receive a jarring injury. Tr. 240. He further
concluded that the most likely injury would be lost workdays or restricted duty. Tr. 240. He
designated the citation as non-S&S after essentially concluding that the failure to maintain
rear-facing floodlights was unlikely to cause an injury because the dozer operator normally
operated in daylight hours in decent weather away from other miners. Tr. 240.

Inspector Poulson attributed moderate negligence to Respondent. Tr. 240; P. Ex,. 17, p.

1. In this regard, he concluded that Respondent knew that the dozer lacked rear-facing
   floodlights. Tr. 430. As proffered mitigating circumstances, Respondent argued at the hearing
   that the mine did not operate at night or in inclement weather. Tr. 376, 380. I note, however,
   Respondent’s concession that depending on the size of the job, the mine sometimes operates two
   shifts, including one that starts before the sun comes up, and another that continues after the sun
   goes down. Tr. 391-92. Respondent also acknowledged that inclement weather, such as snow
   and rain, occurs in Idaho in early fall when the citation was written, and that weather changes can
   occur suddenly, during mid-shift . Tr. 430. In these circumstances, I find that the dozer needed
   rear lights for safety purposes in the context of Respondent’s normal and continued mining
   operations and that Respondent’s failure to maintain the rear-facing flood lights on its dozer in
   contravention of 30 C.F.R. § 56.14100(b) was the result of moderate negligence.  

Accordingly, I affirm the citation as written and find that the Respondent’s failure to have
rear-facing flood lights on the dozer was non-S&S and the result of Respondent's moderate
negligence. Applying the penalty criteria set forth in section 110(i) and outlined above, I find
that the proposed penalty of $100.00 is appropriate.

III. Motion To Approve Partial Settlement Agreements

At the hearing, the parties made a joint motion on the record to settle all three citations at
issue in Docket No. WEST 2011-261-M, i.e., Citation Nos. 8562410, 8562411, and 8562412 .
See Tr. 13-14. The parties propose that Citation Nos. 8562410 and 8562412 be modified to
reduce the level of negligence from “moderate” to “low;” and that Citation No. 8562411 be
modified to reduce the injury or illness that could reasonably be expected to occur from “fatal” to
“permanently disabling”, and to reduce the proposed penalty from $243.00 to $200.00.  

At the hearing, the parties also made a joint motion to settle four of the eleven citations at
issue in Docket No. WEST 2010-405, i.e., Citation Nos. 6483465, 6483466, 6483467, and
6483468. See Tr. 14-15. The parties agreed to reduce the proposed penalty in Citation No.
6483465 from $873.00 to $786.00; and to accept Citation Nos. 6483466, 6483467, and 6483468,
as written.  

After the hearing, pursuant to ongoing settlement negotiations, the parties moved for an
Order approving settlement of four of the remaining seven citations in Docket No. WEST 2010-405, i.e., Citation Nos. 6483470, 6483471, 6483472, and 6483475. The parties proposed that
Citation 6483470 be modified to reduce the level of negligence from “moderate” to “low;” to
reduce the proposed penalty in Citation No. 6483471 from $392.00 to $372.00; to reduce the
proposed penalty in Citation 6483472 from $117.00 to $105.00; and to accept Citation 6483475,
as written. 

Also after the hearing, the parties moved for an Order approving settlement of three of the
five citations at issue in Docket No. WEST 2009-1213, i.e., Citation Nos. 6475789, 6475790,
and 6475791. The parties proposed to reduce the proposed penalty in Citation 6475789 from
$176.00 to $155.00; that Citation 6475790 be modified to reduce the level of negligence from
“moderate” to “low,” and to reduce the proposed penalty from $176.00 to $130.00; and to
reduce the proposed penalty in Citation 6475791 from $873.00 to $785.00.

The parties stipulated that payment of the amended proposed penalties will not impair
Respondent's ability to continue in business, that Respondent exhibited good faith in abating the
cited violations, and that information pertaining to the operator's history of previous violations
and size are contained in Exhibit A, which was filed by the Secretary along with the petition in
the above-captioned proceedings.

I have considered the representations and documentation submitted in this case, and I
conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i)
of the Act.                   

III. ORDER

WHEREFORE, the proposed settlement agreement is APPROVED and the citations
shall be modified as set forth above. It is ORDERED that the operator pay a total penalty of
$1,747.00 in four consecutive monthly installments of $436.00 each, and a forth and final
payment of $439.00, with the first payment due within thirty days of the date of this decision and
each subsequent payment due every thirty days thereafter until paid in full.

In Docket No. WEST 2009-1213-M, Citation Nos. 6475792 and 6475793 are affirmed, as
written, with assessed penalties of $585.00 and $176.00, respectively. In Docket No. WEST
2010-40-M, Citation Nos. 6475793 and 6475793 are modified to reduce the level of negligence
from moderate to low and the proposed penalties are reduced in each citation from $100.00 to
$65.00; and Citation No. 6483474 is affirmed, as written, with an assessed penalty of $100.00.
Within thirty days of the date of this decision, Highland Enterprises, LLC is ORDERED to pay a
civil penalty of $991.00 for those violations found herein.

Upon payment of the penalties assessed herein or agreed to in the approved settlement
agreements, this proceeding is DISMISSED.           

/s/ Thomas P. McCarthy

Thomas P. McCarthy

Administrative Law Judge

Distribution: (E-Mail and Certified Mail)

Emily B. Hays, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
800, Denver, CO 80202-5708

Don Blewett, pro se, Highland Enterprises, LLC, PO Box 356, Grangeville, ID 83530