Secretary of Labor v. Original Sixteen to One Mine, Incorporated
Secretary of Labor v. Original Sixteen to One Mine, Incorporated (FMSHRC WEST 2011-119-M, et al.): Twenty citations affirmed or modified and $2,113 assessed
Apply this to your situation
This order from 2014 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current MSHA standards and Commission precedent, with citations.
Plain-English summary
MSHA brought 22 citations against the Sixteen to One underground gold mine for conditions involving fire protection, escapeways, grinders, housekeeping, chemical labels, electrical equipment, evacuation drills, noise, vegetation near fuel storage, road berms, an open hole, and related safety duties. Judge Jacqueline R. Bulluck vacated a waste-oil citation because the Secretary did not prove that the quantity created a fire hazard and vacated an arc-welder citation because the uninsulated stinger was not energized. She affirmed nine citations as issued and eleven with reduced gravity, negligence, or S&S findings based on the evidence for each condition. The judge rejected the operator's unsupported inability-to-pay defense but recognized its small size, nonaggravating history, and prompt abatement. She assessed total penalties of $2,113, down from the Secretary's proposed $2,582, and dismissed the consolidated cases.
Decision snapshot
- Cited standards: 30 C.F.R. Parts 47, 56, 57, and 62, including §§ 57.4201(a)(2), 57.14115(b), 57.9300(a), and 62.120
- Outcome: Two citations were vacated, nine were affirmed as issued, eleven were affirmed as modified, and $2,113 in total penalties was ordered.
- Key point: Citation-by-citation evidence can justify lowering gravity or negligence while still affirming most violations, and an inability-to-pay claim requires reliable financial support.
Full text (FMSHRC public release)
FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION
OFFICE OF
ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA
AVE., N.W., SUITE 520N
WASHINGTON, DC
20004-1710
TELEPHONE:
202-434-9987 / FAX: 202-434-9949
August 20, 2014
SECRETARY
OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
ORIGINAL SIXTEEN TO ONE
MINE, INCORPORATED,
Respondent
CIVIL
PENALTY PROCEEDING
Docket No. WEST 2011-119-M
A.C. No. 04-01299-232472
Docket No. WEST 2011-465-M
A.C. No. 04-01299-241610
Docket No. WEST 2011-1239-M
A.C. No. 04-01299-258369
Docket No. WEST 2012-516-M
A.C. No. 04-01299-278376
Mine:
Sixteen to One Mine
DECISION
Appearances: Douglas L. Sanders, Esq.,
U.S. Dept. of Labor, Office of the Solicitor, Denver, Colorado,
for Petitioner;
Michael
M. Miller, President, Original Sixteen to One Mine, Inc.,
Alleghany, California, for Respondent.
Before: Judge
Bulluck
These cases are
before me upon Petitions for Assessment of Civil Penalty filed by the Secretary
of Labor (“Secretary”) on behalf of his Mine Safety and Health Administration (“MSHA”)
against Original Sixteen to One Mine, Incorporated (“Original Sixteen”),
pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815. The Secretary seeks a total civil penalty in the amount of
$2,582.00 for twenty-two violations of his mandatory safety standards.
A hearing was
held in Nevada City, California. The following issues are before me: (1)
whether Respondent violated the standards; (2) whether the violations were
significant and substantial, where alleged; (3) whether the violations were
attributable to the level of gravity alleged; and (4) whether the violations
were attributable to the level of negligence alleged.1 The
parties’ Post-hearing Briefs
are of record.
For the reasons
set forth below, I VACATE two citations; AFFIRM nine
citations, as issued, and eleven citations, as modified; and assess
penalties against Respondent.
FACTUAL BACKGROUND
Original Sixteen
operates the Sixteen to One Mine, an underground gold mine in Alleghany,
California. Tr. 289, 336. On May 10, 2011, Bruce Allard, an MSHA inspector for
approximately twelve years, conducted a regular inspection of the mine.2 Tr. 12-14. He observed
several conditions for which he cited Original Sixteen: a fire extinguisher
that had not been inspected since February 2007; a ladder with broken rungs; a
fire suppression system that had been turned off; an out-of-adjustment
stationary grinder; bolts strewn on a storage room floor; uncovered plastic
pails containing oil and other combustible materials; and unlabeled pails
containing oil and other combustible materials. Exs. P-4, P-5, P-7, P-8, P-9,
P-10, P-11; Tr. 17, 21, 25, 31, 35, 38, 41. Allard returned to the mine on May
11 and issued citations to Original Sixteen for excess timber stored within 100
feet of the mine portal, and for failure to keep a record of defects on a
front-end loader. Exs. P-12, P-13; Tr. 44-45, 47-48.
On July 20, 2010,
MSHA Inspector William Berglof inspected the mine. Tr. 113, 116-17. He issued
a citation to Original Sixteen for an arc welder with an uninsulated stinger.
Ex. P-14; Tr. 115-16. The following day, he returned to the mine and issued
citations for failure to conduct underground evacuation drills within a
six-month period, and for exceeding the noise limit to which a miner may be
exposed without enrolling him in a hearing conservation program. Exs. P-15,
P-16; Tr. 122, 127.
On October 20,
2010, Berglof returned to the mine, accompanied by MSHA Inspector Joshua Love. Tr.
150-51. Berglof issued several citations for violations which he encountered: a
broken shovel; two fire extinguishers that had not been inspected since
September 2009, and one that had not been inspected since August 2007; a power
cord with a damaged outer jacket; an out-of-adjustment stationary grinder; dry
vegetation near a diesel storage tank; and missing berms on an access road. Exs.
P-17, P-18, P-24, P-21, P-19, P-20, P-22, P-23; Tr. 152, 155, 161-62, 159,
163-64, 170, 176-77, 182. The next day, Berglof and Love returned to the mine,
and Berglof issued a citation for an open hole adjacent to a travelway. Ex.
P-25; Tr. 186-87.
On December 13,
2011, Jerry Hulsey, an MSHA inspector for approximately thirteen years,
inspected Sixteen to One. Tr. 107-08, 112. He issued a citation for Original
Sixteen’s failure to conduct continuity and resistance testing for its
electrical grounding system.3
Ex. P-2; Tr. 112.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
- Citation No. 8561729
Inspector Allard issued 104(a) Citation No. 8561729,
alleging a violation of section 57.4201(a)(2) that was “unlikely” to cause an
injury that could reasonably be expected to result in “lost workdays or
restricted duty,” and was caused by Original Sixteen’s “high” negligence.4 The “Condition
or Practice” is described as follows:
A 10 lb.
fire extinguisher located on the 1300 level at 49 Winze had not received an
annual inspection of the mechanical parts and extinguishing agent since
February 2007. The fire extinguisher appeared to be in good condition. The area
is normally accessed by one miner once a month. Three citations were issued at
this mine for similar violations on the last inspection.
Ex. P-4. The citation was
terminated after a compliant fire extinguisher was brought to the 1300 level.
A. Fact of
Violation
In order to
establish a violation of one of his mandatory safety standards, the Secretary
must prove that the violation occurred “by a preponderance of the credible
evidence.” Keystone Coal Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995)
(citing Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152) (Nov. 1989)).
Allard testified
that the standard requires fire extinguishers to be inspected annually, and
that this fire extinguisher’s inspection tag indicated that its last inspection
had occurred in February of 2007. Tr. 17-18. Allard opined that if the fire
extinguisher were defective, a miner fighting fires would suffer burns or smoke
inhalation; however, because this extinguisher was charged and in good
condition, injuries would be unlikely. Tr. 18-19.
Michael Miller,
President of Original Sixteen, disagreed, opining that there was no likelihood
of injury, since no ignition source was present. Tr. 340-41. The record
indicates that the fire extinguisher had not been inspected in over three
years, and I credit Allard’s testimony that burns or smoke inhalation, while
unlikely, would result in lost time or restricted duty injuries. Therefore, I
find that the Secretary has proven a violation of section 57.4201(a)(2).
B. Negligence
Allard opined
that Original Sixteen’s negligence was high, since it had received three
citations on a previous inspection for failure to inspect Sixteen to One’s fire
extinguishers. Tr. 18-19. Miller argued that the area was not a travelway,
that no work was taking place in the location during the inspection, that the
mine had a small crew of experienced miners, and that this extinguisher had not
been cited in four years, all mitigating factors in his view. Tr. 340. Miller
added that Original Sixteen had at least 50 fire extinguishers in the mine. Tr.
413.
I credit Miller’s
testimony that no miners were working on the 1300 level at the time of inspection,
and that there were at least 50 fire extinguishers in the mine. Original
Sixteen may have neglected to inspect the subject fire extinguisher, which was
not located in an active mining area, based on the sheer abundance
extinguishers in the mine, irrespective of notice that greater efforts at
compliance were necessary; simply put, it was likely overlooked. Therefore, I
find that the negligence in violating the standard was lower than alleged, and
that Original Sixteen was moderately negligent.
- Citation No. 8561730
Inspector Allard issued 104(a) Citation No. 8561730,
alleging a “significant and substantial” violation of section 57.11050(a) that
was “reasonably likely” to cause an injury that could reasonably be expected to
result in “lost workdays or restricted duty,” and was caused by Original
Sixteen’s “moderate” negligence.5
The “Condition or Practice” is described as follows:
The
secondary escapeway was not properly maintained in that the upper wooden
stairway/ladder in the 49 Winze would not support the weight of a miner. The second
and third rungs broke during this inspection. It is reasonably likely that
unmaintained stairway/ladders in this travelway would result in serious
injuries to the miner who travels it monthly for inspection and to check the
water level in the winze.
Ex. P-5. The citation was
terminated after a new ladder was installed.
A. Fact of Violation
Allard testified
that the second and third rungs broke when either he or the accompanying miner
mounted the ladder. Tr. 21-22. He opined that MSHA’s Program Policy Manual
requires that escapeways provide miners with safe means of egress to the
surface during an evacuation. Tr. 23; Ex. P-6. Without a functional ladder, a
miner would be unable to safely negotiate the ten-foot vertical distance
between the upper and lower levels to escape in an emergency. Tr. 23-24. Allard testified that it
would be reasonably likely that a miner attempting to climb the ladder would
break through the rungs and fall 1½ feet, sustaining strains, sprains or a
broken ankle. Tr. 24-25. Allard also
opined that Original Sixteen was moderately negligent, because the ladder was
used infrequently. Tr. 25.
Miller made
counter arguments that the area was not an escapeway and that it was
infrequently used, that Original Sixteen could not anticipate the rungs
breaking, and that miners were trained to act properly in emergencies. Tr.
342-47. The operator also argues that because it was exploring or developing an
ore body on the 1000 level, a secondary escapeway was not required. Resp’t Br.
at 2; Tr. 346. Unfortunately, the record is devoid of evidence supportive of
Original Sixteen’s contention. I find, based on record evidence that the ladder
was defective, that Original Sixteen violated the standard.
B. Significant
and Substantial
In Mathies
Coal Company, the Commission set forth four criteria that the Secretary
must establish in order to prove that a violation is “significant and
substantial” (“S&S”) under National Gypsum, 3 FMSHRC 822 (Apr.
1981): 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. 6 FMSHRC 1, 3-4
(Jan. 1984); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135
(7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99,
103-04 (5th Cir. 1988), aff’d 9 FMSHRC 2015, 2021 (Dec. 1987) (approving
Mathies criteria). Evaluation of the third criterion, the reasonable
likelihood of injury, should be made in the context of “continued normal mining
operations.” U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). Moreover,
resolution of whether a violation is S&S must be based “on the particular
facts surrounding that violation.” Texasgulf, Inc., 10 FMSHRC 498, 501
(Apr. 1998); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011-12
(Dec. 1987). The
Secretary need not prove a reasonable likelihood that the violation, itself,
will cause injury. Musser Eng’g, Inc., 32 FMSHRC 1257, 1280-81 (Oct.
2010).
The
fact of violation has been established, and a miner using the ladder to conduct
monthly inspections or as part of an escapeway would be subjected to the hazard
of a 1½ foot fall. The focus of the S&S analysis, then, is the third and
fourth Mathies criteria, i.e., whether the hazard was reasonably likely
to result in an injury, and whether the injury would be serious.
I
find that a miner breaking through the ladder rungs and falling 1½ feet would
be reasonably likely to suffer musculoskeletal injuries such as sprains,
strains and fractures. Therefore, I find that the violation was S&S.
C.
Negligence
I
also find that the defect was not obvious based on the fact that it was not
readily apparent until the rungs broke. Ex. P-5 at 3. While it is clear that
the ladder was old and that periodic, precautionary replacement would have been
prudent to prevent an accident, it is speculative to pinpoint when that should
have happened. Therefore, I find that Original Sixteen was negligent, but that
its negligence was low.
- Citation No. 8561731
Inspector Allard issued 104(a) Citation No. 8561731,
alleging a violation of section 57.4560(a) that was “unlikely” to cause an
injury that could reasonably be expected to be “fatal” and was caused by
Original Sixteen’s “high” negligence.6
The “Condition or Practice” is described as follows:
The fire
suppression system provided for the timber in the mine portal was not
maintained. The water supply has been turned off and two sprinkler heads leaked
when the water was turned on. A fire in the portal could result in fatal
injuries to the three miners who normally work underground. A 480 volt power
cable entering the mine through the portal provides a possible ignition source.
This same condition of the fire suppression system has been cited previously at
this mine.
Ex. P-7. The citation was
terminated after the water supply was turned on.
A. Fact of
Violation
Original Sixteen
has conceded the violation, but contests the gravity and negligence
designations. Tr. 16.
Allard opined that when mine fires occur in the
portal, carbon monoxide is pulled into the mine which, historically, has
fatally poisoned miners. Tr. 29. However, he also testified that miners would
be able to escape from the Sixteen to One mine. Tr. 29.
On the other
hand, Miller testified that Original Sixteen is ventilated by natural air flow
and that in May, when the citation was issued, air was flowing out of the mine.
Therefore, by his account, should a fire have occurred, no carbon monoxide
would be entering the mine. Tr. 349; Resp’t Br. at 3. Allard agreed that the
mine has a natural ventilation system, and that air flows in or out depending
on temperature. Tr. 60-61.
I find that, in
the unlikely event of a fire which could occur from the ignition source of the
480-volt cable running through the portal, based on Allard’s testimony that
miners could escape, that miners would be likely to suffer lost time or
restricted duty or, at worst, permanently disabling respiratory injuries. I
further note that the likelihood of a miner suffering permanently disabling
injuries is lessened by Miller’s unchallenged testimony that the portal was
ventilated with out-flowing air, which would dilute noxious fumes. Therefore, I
find that the Secretary has proven that the violation of section 57.4560(a) was
unlikely to result in lost workdays or restricted duty, rather than fatal
injuries.
B. Negligence
Allard opined
that Original Sixteen’s negligence was high, because it had been cited for this
condition on at least two previous occasions; he testified that he had issued
one of these citations. Tr. 30. These prior citations, he argued, put Original
Sixteen on notice of the requirement that the portal have a functional
sprinkler system. Tr. 30-31. In response, Miller argued that Original Sixteen
was using fire retardant paint which, according to him, is acceptable as a fire
suppression system. Tr. 348. There is no support in the record for Original
Sixteen’s contention that fire retardant paint satisfies the requirement for a
fire suppression system, and I also find that Original Sixteen had been put on
notice that greater efforts at compliance were necessary. Therefore, I find
that Original Sixteen was highly negligent in violating the standard.
- Citation No. 8561732
Inspector Allard issued 104(a) Citation No. 8561732,
alleging a “significant and substantial” violation of section 57.14115(b) that
was “reasonably likely” to cause an injury that could reasonably be expected to
result in “lost workdays or restricted duty,” and was caused by Original
Sixteen’s “moderate” negligence.7
The “Condition or Practice” is described as follows:
The
adjustable tool rest on the “Bitco” stationary grinder located in the upper
shop was not adjusted so that the distance between the grinding surface of the
wheel and the rest was not greater than ⅛". The tool rest was 5/16"
from the grinding wheel. It is reasonably likely that the miner who uses the
grinder several times per month would suffer serious injuries from small parts
being caught between the rest and the grinding wheel.
Ex. P-8. The citation was
terminated after the tool rest was properly adjusted.
A. Fact of
Violation
Allard testified
that if the distance between the wheel and the tool rest is greater than ⅛
inch, a small object being ground could be pulled in between the wheel and the
rest, pulling a miner’s hand along with it into the wheel. Tr. 31-32. He opined
that the wheel could be spinning as fast as 3400 revolutions per minute, and
contact with the wheel could result in abrasions and broken bones to the hand. Tr.
33-34. Original Sixteen argues that the purpose of the standard is to ensure
that grinders can be adjusted to ⅛ inch, and that this grinder had that
adjustment. Resp’t Br. at 4.
Contrary to
Original Sixteen’s contention, the standard requires that grinders be set so
that the distance between the wheel and the rest does not exceed ⅛ inch. Clearly,
the condition of the grinder was in violation of the standard.
B. Significant
and Substantial
The
fact of violation has been established, and miners using the wheel
out-of-adjustment would be subjected to broken bones or lacerations to the
hands and fingers. Moving to the third and fourth Mathies criteria, the
focus is whether the hazard was reasonably likely to result in an injury, and
whether the injury would be serious.
Allard
opined that since the grinder was used several times per month, it would be
reasonably likely that a tool would be pulled in between the wheel and the tool
rest. Tr. 34. Jonathan Farrell, former
mine manager at Original Sixteen, disagreed, arguing that the 5/16 inch distance between the
wheel and the tool rest would be insufficient to cause injury. Tr. 300-01. However,
he admitted that it would be unsafe to grind a tool smaller than the size of
the gap. Tr. 325. I find that a miner would be reasonably likely to sustain
broken bones and lacerations to the hands or fingers should a small hand tool
be pulled in between the wheel and the tool rest. Therefore, I find that the
violation was S&S.
C.
Negligence
Allard opined
that management may not have been aware of the condition, and miners had likely
received safety training on operating the grinder. Tr. 34-35. Farrell testified
that when he was in charge of the workforce, he stopped miners from using
equipment unsafely and trained them in proper usage. Tr. 7, 301. There is no
indication in the record of Farrell’s period of employment at the mine,
however, and without establishing that he was working there in May of 2011, his
testimony is of no value in assessing the operator’s negligence. I credit
Allard’s testimony, and find that Original Sixteen was moderately negligent in
violating section 57.14115(b).
- Citation No. 8561733
Inspector Allard issued 104(a) Citation No. 8561733,
alleging a “significant and substantial” violation of section 57.20003(a) that
was “reasonably likely” to cause an injury that could reasonably be expected
result in “lost workdays or restricted duty,” and was caused by Original
Sixteen’s “moderate” negligence.8
The “Condition or Practice” is described as follows:
The bolt
storage room in the upper shop was not kept clean and orderly. The floor was
covered with bolts of various sizes and other small parts. It is reasonably
likely that the miner who accesses the room several times daily would suffer
serious injuries from slipping on small rolling objects.
Ex. P-9. The citation was
terminated after the bolts and parts were removed from the floor and returned
to their container.
A. Fact of
Violation
Allard testified that he observed that a container of
bolts, nuts and other small parts had been emptied onto the storage room floor,
and not cleaned up afterwards. Tr. 35-36; Ex. P-9 at 2. Original Sixteen
offered no challenge to the inspector’s allegation. I credit Allard’s testimony
that the storage room floor was littered with small objects, and I find that
Original Sixteen violated section 57.20003.
B. Significant
and Substantial
Allard opined
that miners accessing the room several times daily could slip and fall on these
small, rolling objects, resulting in sprains and broken bones. Tr. 36-37. Miller
testified, on the other hand, that miners do not often enter the room, located
in a remote area, and that they only do so if looking for an irregular-sized
bolt. Tr. 351-53; Resp’t Br. at 4. He opined that a miner faced no danger of injury
because the room was not open to everyone. Tr. 352.
I find that the
hardware debris littering the storage room floor posed a slip-and-fall hazard, and
that a miner slipping and falling would be reasonably likely to suffer
musculosketetal injuries including strains, sprains, and broken bones. Therefore,
I find that the violation was S&S.
C. Negligence
Allard testified
that the miners had received some training in housekeeping of the storage room.
Tr. 37. According to Miller, the miner leaving the hardware strewn on the floor
was following Original Sixteen’s safety first policy, “SQUARE,” of mining
first, then housekeeping
later, time permitting.9 Tr. 353.
By Original
Sixteen’s admission, mining was prioritized over housekeeping. Allard and
Miller both pointed out that miners had received safety training. Although the
condition was obvious, the room was remotely located and, therefore, management
may not have been aware of the condition. Therefore, I find that Original
Sixteen was moderately negligent in violating the standard.
- Citation No. 8561734
Inspector Allard issued 104(a) Citation No. 8561734,
alleging a violation of section 57.4104(a) that was “unlikely” to cause an
injury that could reasonably be expected to result in“lost workdays or
restricted duty,” and was caused by Original Sixteen’s “high” negligence.10 The “Condition or
Practice” is described as follows:
About 11
open plastic five gallon pails containing used oil and other combustible waste
were being stored in a small room in the upper shop. There were also about 12
closed pails of used oil in the room. Serious injuries to the one miner
normally in the area could result from a fire in this area. This condition was
open and obvious.
Ex. P-10. The citation was
terminated after the waste oil was transferred to closed containers.
A. Fact of
Violation
Allard testified that he observed eleven uncovered five-gallon
pails containing oil, oil filters, and waste rags that were being stored in the
upper shop, as well as twelve additional pails that were closed. Tr. 38-39. He
opined that oil is a combustible material within the purview of the standard,
and that were a fire to occur, miners would suffer burns and smoke inhalation.
Tr. 38-40. Allard also noted, however, that because oil does not readily burn,
and since the pails were not stored in the sunlight, a fire was unlikely to
occur. Tr. 40.
Original Sixteen
argues that the Secretary has not satisfied the “quantity” requirement of the
standard and, therefore, that he has failed to prove a violation. Resp’t Br. at
- In somewhat confusing testimony, Miller stated that there was no waste oil
in the area, then identified the area as designated for used oil storage. Tr.
355-56. He was also of the opinion that a fire would not occur because there
was no ignition source, and that miners would not enter the area, except to
store oil. Tr. 355.
The Secretary did
not provide any evidence demonstrating that the quantity of oil being stored
created a fire hazard. It is evident that Allard cited Original Sixteen because
the pails were uncovered, and that he was not of the opinion that the quantity
of oil created a hazard, since the violation was abated by transferring the oil
to closed containers, rather than reducing the amount being stored. Therefore,
I find that the Secretary has failed to prove a violation of section
57.4104(a), and I vacate the citation.
- Citation No. 8561735
Inspector Allard issued 104(a) Citation No. 8561735,
alleging a violation of section 47.41(a) that was “unlikely” to cause an injury
that could reasonably be expected to result in “lost workdays or restricted
duty,” and was caused by Original Sixteen’s “moderate” negligence.11 The “Condition or
Practice” is described as follows:
About 23
plastic five gallon pails containing used oil stored in a small room in the
upper shop were not labeled to indicate their contents. Serious injuries to the
one miner normally in the area could result from improper use or contact with
the contents.
Ex. P-11. The citation was
terminated after a sign was posted in the area to indicate the pails’ contents.12
A. Fact of
Violation
Allard testified that the standard ensures that miners
handling the containers are informed of their contents, so as to assure proper
usage. Tr. 41. He stated that waste oil, a carcinogen, is classified by MSHA as
a hazardous chemical. Tr. 41-42. He explained that the pails had originally
contained other substances, and then recycled to store Sixteen to One’s used oil;
some pails were labeled, but with information pertaining to the original
contents. Tr. 42. According to him, given waste oil’s hazardous classification,
improper use could cause miners to suffer lost workdays from long-term health
issues, but miners were unlikely to suffer injury in this case because they
were aware of the containers’ contents. Tr. 42-43.
Original Sixteen’s argument that the containers were
appropriately marked in compliance with the standard, is contradicted by Miller’s
own testimony that the pails could not be labeled. Resp’t Br. at 5; Tr. 357. Original
Sixteen also argues that Allard provided no evidence that waste oil is a
hazardous chemical as defined by Part 47, that an exemption in section 47.91
for consumer products applies, that the mine has been inspected by CAL/OSHA
four times a year and never cited for improper storage of waste oil, and that
Allard provided no evidence of how a miner would suffer injury as a result of
this condition. Resp’t Br. at 5-6. Miller maintained that miners would be aware
that the containers contained waste oil, and that they are not normally in the
area and would only enter to dispose of oil. Tr. 356-57.
Section 47.11 defines a hazardous chemical as “any
chemical that can present a physical or health hazard.” 30 C.F.R. § 47.11. I
credit Allard’s testimony that MSHA classifies waste oil as a hazardous
chemical, and Original Sixteen has presented no evidence beyond Miller’s bare
assertion, that the exemption for consumer products or hazardous substances
regulated by the Consumer Product Safety Commission applies. In short, none of
Original Sixteen’s arguments exempt it from the labeling requirement. Therefore,
I find that the standard was violated.
While I find that
Original Sixteen violated the standard, in light of credible evidence that the
miners were fully aware that the pails contained waste oil, the Secretary has
presented no evidence respecting how they would suffer injury from inadequate
labeling. Therefore, I find that this violation had no likelihood of causing
injuries that would reasonably be expected to result in lost workdays or
restricted duty injuries.
B.
Negligence
The record
establishes that the condition was obvious and had existed over an extended
period of time, and Miller should have known that the oil was classified as
hazardous, given that he is an experienced miner and mine owner. See Tr. 360. However,
the area’s known designation for used oil storage and the miners’ knowledge and
familiarity with the contents of the containers mitigated Original Sixteen’s
negligence. Therefore, I find that Original Sixteen was moderately negligent in
violating the standard.
- Citation No. 8561736
Inspector Allard issued 104(a) Citation No. 8561736,
alleging a violation of section 57.4131(a) that was “unlikely” to cause an
injury that could reasonably be expected to be “fatal,” and was caused by
Original Sixteen’s “moderate” negligence.13
The “Condition or Practice”
is described as follows:
More
than one day’s supply of timber was stored within 100 feet of the mine
portal. About
100 pieces of timber ranging from 6" x 10" x 10' to 2" x 6"
x 8" were stacked from 30' to 90' from the portal. In the unlikely event that
the timber caught on fire, the three miners normally underground could suffer
fatal injuries from toxic gases.
Ex. P-12. The citation was
terminated after the timbers were moved away from the portal.
A. Fact of
Violation
Allard testified that the regulation allows the
operator to store only as much timber as the mine can normally use in one day,
within 100 feet of the portal. Tr. 97-98. He opined that the amount of timber
present exceeded a day’s worth of timbering and, thus, Original Sixteen was
storing for future timbering in violation of the standard. Tr. 93, 97-98. In
support of his observation, he recalled that miner Mark Loving told him that
timber was being stored near the portal because it was easier than going up the
hill to retrieve it. Tr. 57, 99. Addressing the gravity of the violation,
Allard opined that the timbers were relatively dry, that a power line, cutting
torches, or smoking could serve as ignition sources, and that if a fire
occurred, carbon monoxide could be pulled underground, fatally poisoning
miners. Tr. 46-47, 88-92. However, in his opinion, combustion was unlikely to
occur. Tr. 46-47.
Miller disagreed with Allard’s assessment that 100
pieces of timber were being stored, estimating the count to range from 50 and
60 pieces, an amount that the miners could transport into the mine in a day
and, in fact, in one shift. Tr. 362-63. However, Miller also testified that he
believed that it is permissible to store more than one day’s supply of timber,
and that combustion was impossible, given that the timber was wet and no
ignition sources were present. Tr. 363, 366-67, 374. Specifically, Miller
stated that an electrical line that Allard identified as a possible ignition
source was, in fact, a phone line. Tr. 89, 366-67; Ex. P-12 at 3-4.
I credit Allard’s
testimony and find that Original Sixteen was storing more than one day’s supply
of timber. While I credit Miller’s testimony that the electrical line was a
phone line, Allard’s unrebutted testimony was that cutting torches and smoking
were possible ignition sources. Consistent with my earlier finding respecting
the fire suppression system, in the unlikely event of a fire, the miners would
likely escape the mine. Therefore, I find that Original Sixteen violated the
standard, and that the violation was unlikely to result in permanently
disabling, rather than fatal, injuries.
B. Negligence
While Loving’s
statement to Allard suggests that Original Sixteen, as a general practice, had
been storing excess timber at the portal for an extended period of time, I
credit Allard’s testimony that management may not have been aware of the
practice. Therefore, I find that Original Sixteen was moderately negligent in
violating section 57.4131(a).
- Citation No. 8561737
Inspector Allard issued 104(a) Citation No. 8561737,
alleging a violation of section 57.14100(d) that had “no likelihood” of causing
“no lost workdays,” and was caused by Original Sixteen’s “moderate” negligence.14 The “Condition or
Practice” is described as follows:
A record
of the defects on the 966 FEL located at the upper shop could not be produced. The
loader was tagged out of service with no record of the defects.
Ex. P-13. The citation was
terminated after the defects on the loader were documented.
A.
Fact of Violation
Allard testified that the loader had been tagged “Do
Not Use,” but that Original Sixteen had not recorded the nature of the defect. Tr.
- Allard opined that this was a paperwork violation, with no likelihood of
injury. Tr. 49. Miller reasoned that he tagged-out the loader because he could
not find the pre-operational examination record; therefore, according to him,
the loader was not defective, and no record of the defect was kept. Tr. 385. Moreover,
Original Sixteen argued that a log book is not an MSHA requirement. Resp’t Br.
at 7.
When Original
Sixteen tagged-out the loader, it was required to record the defect and,
therefore, I find that Original Sixteen violated the standard.
B. Negligence
Allard testified
that the operator knew of the recording requirement and failed to report this
defect, but that it had prevented miners from using unsafe equipment by tagging
it out. Tr. 49-50. Miller testified that he believed Original Sixteen to
have complied with the regulation by tagging-out a piece of equipment which did
not have a pre-operational examination record. Tr. 378, 384-85.
I credit Miller’s
testimony that he, in good-faith, believed that he had complied with the
standard. In fact, Miller took extra safety precautions by tagging out the
loader, even though he was uncertain of its defects. However, the standard is
clear, and Miller should have known of its recording requirement. Therefore, I
find Original Sixteen’ s violation of the standard was caused by low, rather
than moderate negligence.
- Citation No. 8561105
Inspector William Berglof issued 104(a) Citation No.
8561105, alleging a violation of section 57.12030 that was “unlikely” to cause
an injury that could reasonably be expected to be “fatal,” and was caused by
Original Sixteen’s “moderate” negligence.15 The “Condition or Practice” is
described as follows:
The
stinger located on the Lincoln Arc Welder, Ideal Arc R3R, located in the lower
shop near the portal was defective, creating an electrocution hazard. Both the
top and bottom tip and half of the bottom insulated components on the stinger
were partially missing exposing the bare conductor. Miners use this welder as
needed to fabricate and make repairs as needed in and around this shop. The
welder was not tagged out of service and was accessible to any of the 4 miners
working on site this day. This condition needs to be corrected prior to
energizing the welding lead. A miner stated he had used this welder
approximately 2-3 weeks ago. The welder was immediately tagged out of service.
Ex. P-14. The citation was
terminated after the stinger was cut off of the positive lead on the welder.
A. Fact of
Violation
Inspector Jerry Hulsey opined that electricity is
transmitted through a stinger, which is connected to welding leads and clamps
to the welding rod. Tr. 119-121. Viewing the photograph of the stinger, Hulsey
opined that the bottom portion of the stinger was missing, exposing the bare
conductors. Tr. 120-21; Ex. P-14 at 4. According to him, if the stinger were
connected to a metal object, an arc flash could occur, potentially causing the
person holding the stinger to be electrocuted. Tr. 118, 121. The Secretary
argues that when Berglof inspected the welder, the stinger was energized with
its bare conductors exposed. Secy’ Br. at 20.
Miller opined
that the stinger was obviously damaged, and that a miner would not energize the
welder in such defective condition. Therefore, he asserted, the stinger was not
energized, it did not create a hazard, and Original Sixteen could have repaired
it before use. Tr. 387-90. Miller testified that only two miners would use the
welder, but admitted that it had not been tagged-out. Tr. 388.
Berglof’s
inspection notes state that he “Interviewed certified welder, he stated he used
the welder 2 -3 weeks ago, it was not damaged like it is now. States he . . .
would never use it with a broken stinger.” Neither the face of the citation,
nor Berglof’s notes indicate that the welder was energized and, because Berglof
was not called to testify, I find that the welder was not energized. Although
the welder was not tagged-out of service, the damaged stinger was obvious, and
the standard provides an opportunity for correction of a potentially dangerous
condition before energizing equipment. Therefore, based on my finding that the
welder was not energized when Berglof cited the operator, I vacate this
citation.
- Citation No. 8561106
Inspector Berglof issued 104(a) Citation No. 8561106,
alleging a violation of section 57.4361(a) that was “unlikely” to cause an
injury that could reasonably be expected to be “fatal,” and was caused by
Original Sixteen’s “high” negligence.16 The “Condition or Practice” is described as
follows:
There
has [sic] been no underground evacuation drills conducted at this mine this
year. The underground drill is required at least every 6 months. These drills
are required to assess the ability of all miners underground to reach the
surface or refuge chambers within the time limits of the self-rescue devices. There
were three miners working underground at the time of issuance.
Ex. P-15. The citation was
terminated after an unannounced underground evacuation drill was conducted.
A. Fact of
Violation
Original Sixteen
conceded the violation, but contests the gravity and negligence designations. Tr.
396.
Miller opined that miners would evacuate the mine
through their regular entrance and exit route and, therefore, there was no
possibility that a miner would be killed in an emergency. Tr. 396-97.
Berglof’s notes
do not provide a justification for designating this violation as “fatal,” and
Hulsey did not address this issue. Ex. P-15 at 2. Berglof’s notes state that
injury was unlikely because miners were only working on the 1000 level of the
mine. I find that were an emergency to occur, miners would be able to escape
through their familiar routes. However, miners untrained in quick evacuation
response could trip-and-fall, leading to musculoskeletal injuries such as
sprains, strains, broken bones and head trauma or, in the event of a fire,
smoke inhalation and burns. Thus, I find that failure to conduct regular
evacuations in accordance with the standard would be reasonably expected to
result in permanently disabling, rather than fatal injuries.
B.
Negligence
Miller
testified that Original Sixteen was not negligent because it has conducted
emergency evacuation drills, including unannounced drills, and that miners were
trained in how to exit the mine. Tr. 397-98.
Berglof’s
notes state that “Mr. Miller stated they just forgot to do it . . . . Mr.
Miller also believes this is not required since he [is] in non-producing status
. . . .” Ex. P-15 at 2. Based on the record, I find that Original Sixteen’s
management was aware of the requirement to conduct evacuation drills, and that
it has provided no justification for failure to comply with the standard. Therefore,
I find that there are no mitigating factors, and that Original Sixteen was
highly negligent in violating section 57.4361(a).
- Citation No. 8561107
Inspector Berglof issued 104(a) Citation No. 8561107,
alleging a violation of section 62.120 that was “unlikely” to cause an injury
that could reasonably be expected to be “permanently disabling,” and was caused
by Original Sixteen’s “moderate” negligence.17 The “Condition or Practice” is
described as follows:
The
results of an MSHA full shift noise sample taken on 07/21/10 showed the utility
miner working underground received an action level noise dose of 132.0%. This
exceeds the action level dose or 50% plus the error factor (or 66%). The miner
was not enrolled in a hearing conservation program as required by 30 C.F.R.
62.120.
The
abatement date for this citation is to allow the mine operator time to enroll
the miner into a formal hearing conservation program which meets all the
requirements of 30 C.F.R. 62.150.
Ex. P-16. The citation was
terminated after the operator offered audiograms to all miners.
A. Fact of
Violation
Hulsey testified that if a noise sample exceeds the
action level limit, the operator must enroll miners in a hearing conservation
program. Tr. 128-130. The noise sample showed that the utility miner received a
noise dose of 132% which, as Hulsey opined, is double the permissible limit of
the action level, including an error factor. Tr. 129-130; Ex. P-16 at 3. According
to Berglof’s notes, the miner exposed to the excess noise was not enrolled in a
hearing conservation program. Tr. 130; Ex. P-16 at 3. Berglof’s notes also
state that a miner exposed to excessive noise would suffer permanently
disabling hearing loss, but that it would be unlikely to occur, because the
miners wore ear plugs and muffs. Ex. P-16 at 3.
Miller agreed
that the sample accurately reflected the noise dose that the miner received,
but testified that Original Sixteen offered miners the opportunity to enroll in
a hearing conservation program, which they refused. Tr. 399-400. He testified
that as Berglof was conducting the test, he stated that an air leak distorted
the test and made it noisier than normal levels. Tr. 398. Original Sixteen
argues that application of this standard is inappropriate to Sixteen to One
because the mine does not have a predictable noise level; rather, the noise
reading was anomalous. Resp’t Br. at 8-9; Tr. 400.
Miller conceded
that the miner received a noise dose in excess of the action level limit, and
Original Sixteen’s contention that it offered miners enrollment in a hearing
conservation program falls short of the requirement of actually enrolling the
miner. A miner exposed to excessive noise over a prolonged period may suffer
permanently disabling hearing loss. Therefore, I find a violation of section
62.120, and that it was unlikely to cause permanently disabling injuries.
B. Negligence
Berglof’s notes
state that the miners had received training on the importance of hearing
protection, and that they were provided ear plugs and ear muffs. Ex. P-16 at 3.
No evidence has been produced to rebut Original Sixteen’s argument that it does
not have a history of noise violations. While these factors mitigate Original
Sixteen’s negligence, the noise dose received by the miner far exceeded the
action level. Therefore, I find that Original Sixteen was moderately negligent
in violating the standard.
- Citation No. 8561177
Inspector Berglof issued 104(a) Citation No. 8561177,
alleging a “significant and substantial” violation of section 57.14100(b) that
was “reasonably likely” to cause an injury that could reasonably be expected to
result in “lost workdays or restricted duty,” and was caused by Original
Sixteen’s “moderate” negligence.18 The “Condition or Practice” is described as
follows:
The
square nosed shovel, located at the shop, had a damaged splintered handle. The
32 inch handle had a 3 ½ inch splintered end with sharp ends. The shovel is
used for clean-up. The shovel was not tagged out of service and is readily
available to any of the five miners on site. This condition exposes miners to a
hand injury hazard.
Ex. P-17. The citation was
terminated after the damaged section of the shovel was repaired.
A. Fact of
Violation
Inspector Joshua
Love testified that he had been an MSHA inspector since June 2009, and that he
accompanied Inspector Berglof on his October 20 and October 21 inspections of
Sixteen to One, and observed each of the conditions cited during the
inspections. Tr. 150-51. He stated that the shovel with the broken handle was
available for use, and miners using it would be subjected to hand lacerations
and possible infection. Tr. 153; Ex. P-17 at 3. Miller, on the other hand,
testified that miners working at Sixteen to One would not have picked up the
broken shovel, especially given that a new shovel was standing next to it. Tr.
403, 405. Miller also argued that the standard does not apply to a shovel
because it is not a mechanical tool. Tr. 409. Original Sixteen argues that it
satisfied the standard by removing the shovel in a timely manner. Resp’t Br. at
9-10.
The evidence
establishes that the shovel had a splintered handle, and that it was available
for use. Miners using the shovel would be subjected to any of the injuries
associated with handling splintered wood, lacerations and splinters penetrating
the fingers or hands, and infection; therefore, the tool could not be used
safely. I credit Miller’s testimony that a new shovel was readily available
next to the splintered one and, therefore, conclude that the violation was
unlikely to result in an injury that would not require lost workdays. Therefore,
I find that Original Sixteen violated the standard, but I also find that the
violation was non - S&S.
B. Negligence
Love agreed with
Berglof’s assessment of moderate negligence, and opined that the break in the
shovel was obvious, but that the operator had trained miners to repair broken
shovels and had provided other shovels in good condition. Tr. 154-55. The
record establishes that the hazard was obvious, but that Original Sixteen had
provided adequate training and made available tools in good condition, which I
consider mitigating factors. Therefore, I find Original Sixteen’s violation of
the standard to be caused by its low, rather than moderate negligence.
- Citation No. 8561178
Inspector Berglof issued 104(a) Citation No. 8561178,
alleging a violation of section 57.4201(a)(2) that was “unlikely” to cause an
injury that could reasonably be expected to result in“lost workdays or restricted
duty,” and was caused by Original Sixteen’s “moderate” negligence. The “Condition
or Practice” is described as follows:
The fire
extinguisher, located at the shop, did not have the required annual maintenance
inspection conducted within the last 12 months. The last maintenance inspection
was done on September 2009. The fire extinguisher has no visible damage to the
cylinder and the hose was in good condition. This condition exposes miners to
the hazard of fighting a fire without a fire ready fire extinguisher.
Ex. P-18. The citation was
terminated after the out-of-compliance extinguisher was replaced by one
inspected within the last year.
A. Fact of
Violation
Original Sixteen
conceded the violation, but contests the gravity and negligence designations. Tr.
412.
Inspector Love testified that a miner fighting a fire
with a defective extinguisher would suffer smoke inhalation and first-degree
burns; however, in his opinion, injury was unlikely because there was no
visible damage to the extinguisher. Tr. 158. Miller opined that this fire
extinguisher was not required, and that it was in good condition. Tr. 413.
Original Sixteen
argued that “miners were not endangered due to the paper oversight.” Resp’t Br.
at 10. The record makes clear that the fire extinguisher was in good condition.
Therefore, I find a violation that was unlikely to cause a miner to suffer
injuries resulting in lost workdays or restricted duty.
B. Negligence
Love and Miller
agreed that there were other annually-inspected fire extinguishers in the area.
Tr. 158, 413. While the inspection date on the extinguisher was obvious, I find
that the availability of the other extinguishers mitigated Original Sixteen’s
negligence. Therefore, I find that Original Sixteen was moderately negligent in
violating the standard.
- Citation No. 8561181
Inspector Berglof issued 104(a) Citation No. 8561181,
alleging a violation of section 57.4201(a)(2) that was “unlikely” to cause an
injury that could reasonably be expected to result in “lost workdays or
restricted duty,” and was caused by Original Sixteen’s “moderate” negligence.
The “Condition or Practice” is described as follows:
The fire
extinguisher, located at the upper shop, did not have the required annual
maintenance inspection conducted within the last 12 months. The last
maintenance inspection was done on August 21, 2007. The fire extinguisher has
no visible damage to the cylinder and the hose was in good condition. This
condition exposes miners to the hazard of fighting a fire without a ready fire
extinguisher.
Ex. P-21. The citation was
terminated after the out-of-compliance extinguisher was replaced by one that
was in compliance.
A. Fact of
Violation
Love stated that based on Berglof’s notes, this fire
extinguisher had not been inspected in approximately three years, and agreed
with Berglof’s gravity determinations for the reasons that he articulated
respecting the prior citation. Tr. 160-61; Ex. P-21 at 3. Original Sixteen
offered no new arguments for its failure to maintain its fire extinguishers in
accordance with the standard. Therefore, I find that Original Sixteen violated
the standard.
B. Negligence
Love testified that he agreed with Berglof’s
negligence determination for the reasons that he articulated respecting the
prior violation. Tr. 161. Applying the same analysis as in the previous
violation, I find that Original Sixteen was moderately negligent.
- Citation No. 8561184
Inspector Berglof issued 104(a) Citation No. 8561184,
alleging a violation of section 57.4201(a)(2) that was “unlikely” to cause an
injury that could reasonably be expected to result in “lost workdays or
restricted duty,” and was caused by Original Sixteen’s “moderate” negligence.
The “Condition or Practice” is described as follows:
The fire
extinguisher, located at the 800 level MCC, did not have the required annual
maintenance inspection conducted within the last 12 months. The last
maintenance inspection was done on September 2009. The fire extinguisher has no
visible damage to the cylinder and the hose was in good condition. This
condition exposes miners to the hazard of fighting a fire without a fire ready
fire extinguisher.
Ex. P-24. The citation was
terminated after the out-of-compliance extinguisher was replaced by one that
was in compliance.
A. Fact of
Violation
Love testified that based on Berglof’s notes, this
fire extinguisher had not been inspected in approximately one year and agreed
with Berglof’s gravity determinations, for the reasons he articulated for the
last citation. Tr. 162-63; Ex. P-24 at 3. Original Sixteen offered no new
arguments for this citation. Therefore, I find that Original Sixteen violated
the standard.
B. Negligence
Love stated that he agreed with Berglof’s negligence
determination for reasons that he had articulated respecting the previous fire
extinguisher violations. Tr. 163. Therefore, I find that Original Sixteen was
moderately negligent.
- Citation No. 8561179
Inspector Berglof issued 104(a) Citation No. 8561179,
alleging a violation of section 57.12004 that was “unlikely” to cause an injury
that could reasonably be expected to result in “no lost workdays,” and was
caused by Original Sixteen’s “moderate” negligence.19 The “Condition or Practice” is
described as follows:
The 120v
power cord to the overhead light in the change room, had a damaged outer
jacket, exposing the inner insulated conductors to mechanical damage. The outer
jacket had a ¼ inch cut in the outer jacket. Miners use the change room daily. This
condition exposes miners to an electric shock hazard.
Ex. P-19. The citation was
terminated after the operator repaired the cable.
A. Fact of
Violation
Love testified that the quarter-inch cut in the outer
jacket exposed the inner electrical wires to mechanical damage. Tr. 164-67; Ex.
P-19 at 3. He opined that the cut indicated that the cable had been damaged,
and that something had sliced it. Tr. 167. According to Love, injury was
unlikely because a miner would have to intentionally reach overhead to contact
the cable. Tr. 169-170. A miner contacting the wires would merely be
shocked which, in Love’s opinion, would not result in lost work time, since the
injury would be less severe than first degree burns. Tr. 168-69.
Original Sixteen
argues that an outer jacket is not required. Resp’t Br. at 11. Miller admitted
that the outer jacket was damaged, but opined that a miner would not be shocked
because the inner wires were not exposed to mechanical damage. Tr. 419-420.
I find that the cut in the outer jacket exposed the
inner electrical wires to mechanical damage and that, in the unlikely event
that a miner were to contact the exposed wires, an electrical shock would
occur, and any injury would be minor.
B. Negligence
Love agreed with
Berglof’s assessment that Original Sixteen was moderately negligent, opining
that management may not have been aware of the condition of the cable because
the room is typically used only by rank-and-file miners, and that the damaged
cable would be difficult to contact. Tr. 170. I find that Original Sixteen was
moderately negligent in violating the standard.
- Citation No. 8561180
Inspector Berglof issued 104(a) Citation No. 8561180,
alleging a “significant and substantial” violation of section 57.14115(b) that
was “reasonably likely” to cause an injury that could reasonably be expected to
be “permanently disabling,” and was caused by Original Sixteen’s “moderate”
negligence. The “Condition or Practice” is described as follows:
At the
fabrication storage, the tool rest on the bench grinder was not set properly. The
bench grinder was 120V and plugged in. The tool rest was set at 1¼ inch
opening. The bench grinder has a speed of 1750 RPM. The grinder was readily
accessible to any of the 5 miners on site. This condition exposes miners to a
serious injury from contacting the grinder wheel.
Ex. P-20. The citation was
terminated after the tool rest was adjusted.
A. Fact of
Violation
Love testified
that the distance between the wheel and tool rest on this grinder was 1¼ inch. Tr.
173; Ex. P-20 at 3-4. Original Sixteen reiterated its argument respecting the
prior grinder citation, that the standard ensures only that the rest be
adjustable to ⅛ inch, rather than requiring that the distance between the wheel
and tool rest not exceed that maximum setting. Resp’t Br. at 11. Miller
asserted that “everything the inspector wrote was pure speculation.” Tr. 421.
As has been discussed, I find Original Sixteen’s position unavailing, and I
conclude that the condition of the grinder violated the standard.
B. Significant
and Substantial
Love agreed with
Berglof’s determination that permanently disabling injuries, such as cuts and
lacerations to the hands were reasonably likely to occur, because a hand-held
tool would be pulled into the gap between the wheel and the rest. Tr. 174-75. Again,
Miller contended that the gap would not cause an accident. Tr. 421.
As with the prior
citation for an out-of-adjustment grinding wheel, I find that a miner would
be reasonably likely to suffer broken bones and lacerations should his hands or
fingers be pulled in between the wheel and the tool rest. Therefore, I find
that this violation was S&S, and that broken bones or lacerations to hands
or fingers would be reasonably likely to result in lost workdays or restricted
duty, rather than permanently disabling injuries.
C.
Negligence
Love, also in
agreement with Berglof’s determination of moderate negligence, opined that,
while the condition was open and obvious, miners had received training in
properly adjusting the grinder. Tr. 175-76. Miller testified that the only
miner who would use the grinder was experienced. Tr. 421. Based on the obviousness
of the condition and evidence that miners had received training on properly adjusting the machine, I find that Original
Sixteen was moderately negligent in violating the standard.
- Citation No. 8561182
Inspector Berglof issued 104(a) Citation No. 8561182,
alleging a violation of section 57.4130(b) that was “unlikely” to cause an injury
that could reasonably be expected be “permanently disabling,” and was caused by
Original Sixteen’s “moderate” negligence.20 The “Condition or Practice” is described
as follows:
The area
around the diesel storage tank was not clear of dry vegetation. The diesel storage
tank capacity is 5000 gallons. There is an estimated 300 gallons of diesel in
the tank. There was [sic] large amounts of dry branches 5' in front of and 15'
behind the fuel storage. Miners access the area as needed to fuel service
vehicles. This condition exposes miners to fire hazards.
Ex. P-22. The citation was
terminated after the vegetation was removed.
A. Fact of
Violation
Love opined that the regulation applies to the diesel
storage tank, because it stores combustible liquid.21 Tr. 178-79. He testified that because
there were no identifiable heat sources, a fire would be unlikely to occur. Tr.
- He also opined that the tank was infrequently used, but a fire could
result from any vegetation accumulated under a heated engine when fueling a
vehicle. Tr. 180. Love disagreed with Berglof’s severity-of-injury
determination, however, testifying that if a fire were to occur, miners would
suffer smoke inhalation and first-degree burns, which would be reasonably
likely to result in lost workdays or restricted duty, rather than permanently
disabling injuries. Tr. 179.
Original Sixteen
argues that the photograph taken by the inspector shows vegetation more than 25
feet away from the tank, and that no consideration was given regarding the current
conditions at the mine. Resp’t Br. at 12. Miller testified that no miner was
fueling equipment when the condition was cited, and that no ignition sources
were present. Tr. 421-23.
I find that dry
vegetation was present within the 25-foot perimeter of the fuel storage tank,
and that the tank was infrequently used. I also find that in the unlikely event
of a fire, miners would be subjected to injuries from smoke inhalation and
first degree burns, resulting in lost workdays or restricted duty. Therefore, I
find that Original Sixteen violated the standard.
B.
Negligence
Love agreed with
Berglof’s assessment of moderate negligence, because the operator removed some
of the vegetation prior to the citation being issued. Tr. 180-81; Ex. P-22 at
-
Original Sixteen argued that it was pulling the dry vegetation away from the
tank when the inspector arrived. Resp’t Br. at 12. While the condition was
obvious, the evidence is lacking as to how long the condition had existed;
indeed, Original Sixteen was engaged in removing the dry vegetation when the
condition was cited. Therefore, I find that Original Sixteen’s negligence in
violating the standard was low, rather than moderate. -
Citation No. 8561183
Inspector Berglof issued 104(a) Citation No. 8561183,
alleging a “significant and substantial” violation of section 57.9300(a) that
was “reasonably likely” to cause an injury that could reasonably be expected to
be “fatal,” and was caused by Original Sixteen’s “moderate” negligence.22 The “Condition or
Practice” is described as follows:
The
berms along the bank of the access road to the Tightener Portal were not being
maintained. There are two missing berms at the culverts. The road had an
average width of 11 feet. The openings in the berms are between 12-15 feet
wide. The remainder of the berms showed signs of degrading. The estimated drop
is 150+ feet fall to the floor below. Miners recently accessed the road for the
installation of a fan in the Tightener Portal. This condition exposes miners to
a roll over vehicle hazard.
Ex. P-23. The citation was
terminated after a gate and delineators were installed and a warning sign was
posted.
A. Fact of
Violation
Love testified that loaders and service trucks, not
equipped with rollover protection, typically travel on the roadway and, if they
were to leave the road, they would fall 150 feet to the ground below and roll
over. Tr. 184-85. Miller argued that miners were in no danger of running
through the berms. Tr. 427. Original Sixteen contends that the mine roads were
maintained, and that the abatement, mere installation of a sign, indicates that
the missing berms posed no danger. Resp’t Br. at 13.
I find that there
were two 12 to 15-foot gaps between the berms, and that they were reasonably
likely to result in service trucks and loaders leaving the road and plunging
down the 150 foot embankment. Therefore, I find that Original Sixteen violated
the standard.
B. Significant
and Substantial
In Love’s
opinion, because the road was rough, uneven and rutted, it would be reasonably
likely that a truck would travel through a berm, resulting in the operator’s
death. Tr. 185-86. Miller opined that miners infrequently traveled in the area,
and that no danger was present. Tr. 424-27.
I find that a
truck or loader, without rollover protection, running through a berm and
plunging 150 feet and overturning, would be reasonably likely to result in the
driver sustaining severe injuries ranging from head trauma to crush injuries,
which are potentially fatal. Therefore, I find that the violation was S&S.
C. Negligence
Love agreed with
Berglof’s assessment of moderate negligence, opining that weather had
deteriorated the berms. Tr. 186, 268. The evidence establishes that the
condition of the berms was obvious, and that they had been eroded by weather. I
find that, in failing to maintain the berms in good condition, Original Sixteen
was moderately negligent in violating the standard.
- Citation No. 8561185
Inspector Berglof issued 104(a) Citation No. 8561185,
alleging a “significant and substantial” violation of section 57.11012 that was
“reasonably likely” to cause an injury that could reasonably be expected to
result in “lost workdays or restricted duty,” and was caused by Original
Sixteen’s “moderate” negligence.23 The “Condition or Practice” is described as
follows:
The
travelway leading to the 1088 timber repair area has an open hole where persons
or materials may fall and was not protected with a barrier, cover or railing,
creating a slip, trip and/or fall hazard. The open hole is located at the 1084
dump point. The unprotected area is approximately 8 feet in length with a
gradual downward slope, consisting of loose and unconsolidated material ranging
in size from dust to 14-inches in diameter. A miner slipping and/or falling in
this area would reasonably likely sustain an ankle or knee strain or sprain
type injury. The travelway through this area narrows down to 24 inches, with
visible under-cutting the east side rail noted. Miners access this travelway
daily.
Ex. P-25. The citation was
terminated after the hole was covered.
A. Fact of
Violation
Love referred to Berglof’s notes, which stated that
miners traveled this travelway at least twice daily to get to the 1088 timber
repair area. Tr. 188, 271-72; Ex. P-25 at 5. Love opined that the hole was
eight feet wide by approximately two feet deep, large enough for a person to
fall through, and that it was being used by Original Sixteen to dump ore. Tr.
188-91, 194; Ex. P-25 at 6. He testified that there was no railing, barrier,
cover, sign or barricade. Tr. 195.
Jonathan Farrell testified that the hole was against
the mine ribs, which is not where miners walked, but admitted that the hole was
near a travelway. Tr. 317-322. He opined that a warning light installed by
Original Sixteen brought the operator into compliance with the standard. Tr.
- Miller also believed that the light provided adequate warning, referencing
another case in which an MSHA special investigator had advised him that a
warning light provides sufficient notice of a hazardous condition. Tr. 455-56. Original
Sixteen argues that Love has limited experience inspecting underground mines,
and no experience inspecting gold mines. Resp’t Br. at 15-16.
I find that the hole was near the travelway used by
miners, and that Original Sixteen failed to protect miners from falling into
it. While the warning light illuminating the hole alerted miners to the hazard,
it did not prevent them from falling into the hole as a result of slipping or
tripping, and a protective barrier, as required by section 57.11012, was not
impractical. Therefore, I find that Original Sixteen violated the standard.
B. Significant
and Substantial
Love agreed with
Berglof, testifying that because miners often traveled the walkway which, at
one point, narrows to 24 inches, a fall into the hole was reasonably likely, and
a miner would receive muscle strains, twisted ankles or broken bones. Tr. 190,
193.
Farrell testified
that miners, familiar with the area, would not trip and fall into the hole and,
even if a fall occurred, the miner would not be harmed. Tr. 310, 313. Miller
also opined that the miners would not fall into the hole, given that the floor
was flat and a mine car would not flip over, and that the area was infrequently
traveled. Tr. 429, 431, 433.
The record
establishes that the hole was located near a travelway used, at least
infrequently, by miners, and I find that a miner falling into the hole and down
the slope of unconsolidated material would be reasonably likely to suffer
musculoskeletal injuries such as sprains, strains and broken bones. Therefore,
I find that the violation is S&S.
C. Negligence
Love opined that
Original Sixteen’s negligence was moderate, because the operator may have
reasonably believed that no cover was needed for an area where work was being
performed. Tr. 194. I find that the hole was obvious, and that Original
Sixteen held a good faith belief that the warning light was sufficient to warn
against the danger. However, the standard requires a physical barrier, and
erecting one would not have blocked access to the hole. Therefore, I find that
providing the warning light mitigated Original Sixteen’s negligence, and that
it was low, rather than moderate.
PENALTIES
While the
Secretary has proposed a total civil penalty of $2,582.00 for the violations, the
judge must independently determine the appropriate assessment by proper
consideration of the six penalty criteria set forth in section 110(i) of the
Act. 30 U.S.C. § 820(i). Sellersburg Co., 5 FMSHRC 287, 291-92 (Mar.
1983), aff’d 736 F.2d 1147 (7th Cir. 1984).
Applying the
penalty criteria, I find that Original Sixteen is a small operator with an
overall history of violations that is not an aggravating factor in assessing
appropriate penalties.24
I also find that Original Sixteen demonstrated good faith in achieving rapid
compliance after notice of the violations.
Addressing
Original Sixteen’s ability to pay, Miller testified that the operator does not
have the assets to pay the penalty proposed by the Secretary, that he would be
paying the penalties personally, and that he does not have sufficient funds to
continue operating the mine. Tr. 442. In support of its contention, Original
Sixteen submitted a gold production report and its Quarterly Report to the
Securities and Exchange Commission for the quarter ending March 31, 2012. Exs.
R-1, R-7.
The Commission
has held that the mine operator has the burden to prove that the proposed
penalty will affect its ability to continue in business. Sellersburg, 5
FMSHRC at 294. The financial report submitted by Original Sixteen is unaudited
which, as other judges have recognized, is insufficient support for an
inability-to-pay defense. Apex Quarry, 33 FMSHRC 3158, 3162-63 (Dec.
2011) (ALJ) (citing Johnco Materials, Inc., 33 FMSHRC 1431, 1433-34
(June 2011) (ALJ)). Without adequate documentation of Original Sixteen’s
financial status, the effect of the proposed penalties on its ability to
continue in business cannot be determined. Therefore, I find that Original
Sixteen has not met its burden, and that the proposed civil penalties will not
affect the operator’s ability to continue in business.
The remaining
criteria involve consideration of the gravity of the violations and Original Sixteen’s
negligence in committing them. These factors have been discussed fully,
respecting each violation. Therefore, considering my findings as to the six
penalty criteria, the penalties are set forth below.
1. Citation
No. 8561729
It has been established
that this violation of section 57.4201(a)(2) was unlikely to cause an injury
that could reasonably be expected to result in lost workdays or restricted
duty, that Original Sixteen was moderately negligent, and that it was timely
abated. The Secretary proposed a penalty of $100.00. In consideration of my
finding as to negligence, I find that a penalty of $70.00 is appropriate.
2. Citation
No. 8561730
It has been
established that this S&S violation of section 57.11050(a) was reasonably
likely to cause an injury that could reasonably be expected to result in lost
workdays or restricted duty, that Original Sixteen’s negligence was low, and
that it was timely abated. The Secretary proposed a penalty of $100.00. In
consideration of my finding as to negligence, I find that a penalty of $80.00
is appropriate.
3. Citation
No. 8561731
It has been
established that this violation of section 57.4560(a) was unlikely to cause an
injury that could reasonably be expected to result in lost workdays or
restricted duty, that Original Sixteen was highly negligent, and that it was
timely abated. The Secretary proposed a penalty of $224.00. In consideration of
my finding as to gravity, I find that a penalty of $160.00 is appropriate.
4. Citation
No. 8561732
It has been
established that this S&S violation of section 57.14115(b) was reasonably
likely to cause an injury that could reasonably be expected to result in lost
workdays or restricted duty, that Original Sixteen was moderately negligent,
and that it was timely abated. Therefore, I find that a penalty of $100.00, as
proposed by the Secretary, is appropriate.
5. Citation
No. 8561733
It has been
established that this S&S violation of section 57.20003(a) was reasonably
likely to cause an injury that could reasonably be expected to result in lost
workdays or restricted duty, that Original Sixteen was moderately negligent,
and that it was timely abated. Therefore, I find that a penalty of $100.00, as
proposed by the Secretary, is appropriate.
6. Citation
No. 8561734 - VACATED
7. Citation
No. 8561735
It has been
established that this violation of section 47.41(a) had no likelihood of
causing an injury that could reasonably be expected to result in lost workdays
or restricted duty, that Original Sixteen was moderately negligent, and that it
was timely abated. The Secretary proposed a penalty of $100.00. In
consideration of my finding as to negligence, I find that a penalty of $100.00
is appropriate.
8. Citation
No. 8561736
It has been
established that this violation of section 57.4131(a) was unlikely to cause an
injury that could reasonably be expected to be permanently disabling, that
Original Sixteen was moderately negligent, and that it was timely abated. The
Secretary proposed a penalty of $100.00. In consideration of my finding as to
gravity, I find that a penalty of $100.00 is appropriate.
9. Citation
No. 8561737
It has been
established that this violation of section 57.14100(d) had no likelihood of
resulting in an injury that could reasonably be expected to result in no lost
workdays, that Original Sixteen’ s negligence was low, and that it was timely
abated. The Secretary proposed a penalty of $100.00. In consideration of my
finding as to negligence, I find that a penalty of $70.00 is appropriate.
10. Citation
No. 8561105 - VACATED
11. Citation
No. 8561106
It has been
established that this violation of section 57.4361(a) was unlikely to cause an
injury that could reasonably be expected to be permanently disabling, that
Original Sixteen was highly negligent, and that it was timely abated. The
Secretary proposed a penalty of $207.00. In consideration of my finding as to
gravity, I find that a penalty of $170.00 is appropriate.
12. Citation
No. 8561107
It has been
established that this violation of section 62.120 was unlikely to cause an
injury that could reasonably be expected to be permanently disabling, that
Original Sixteen was moderately negligent, and that it was timely abated. Therefore,
I find that a penalty of $100.00, as proposed by the Secretary, is appropriate.
13. Citation
No. 8561177
It has been
established that this violation of section 57.14100(b) was unlikely to cause an
injury that could reasonably be expected to result in no lost workdays, that
Original Sixteen’s negligence was low, and that it was timely abated. The
Secretary proposed a penalty of $100.00. In consideration of my findings as to
gravity and negligence, I find that a penalty of $70.00 is appropriate.
14. Citation
No. 8561178
It has been
established that this violation of section 57.4201(a)(2) was unlikely to cause
an injury that could reasonably be expected to result in lost workdays or
restricted duty, that Original Sixteen was moderately negligent, and that it
was timely abated. Therefore, I find that a penalty of $100.00, as proposed by
the Secretary, is appropriate.
15. Citation
No. 8561181
It has been
established that this violation of section 57.4201(a)(2) was unlikely to cause
an injury that could reasonably be expected to result in lost workdays or
restricted duty, that Original Sixteen was moderately negligent, and that it
was timely abated. Therefore, I find that a penalty of $100.00, as proposed by
the Secretary, is appropriate.
16. Citation
No. 8561184
It has been
established that this violation of section 57.4201(a)(2) was unlikely to cause
an injury that could reasonably be expected to result in lost workdays or
restricted duty, that Original Sixteen was moderately negligent, and that it
was timely abated. Therefore, I find that a penalty of $100.00, as proposed by
the Secretary, is appropriate.
17. Citation
No. 8561179
It has been
established that this violation of section 57.12004 was unlikely to cause an
injury that could reasonably be expected to result in no lost workdays, that
Original Sixteen was moderately negligent, and that it was timely abated. Therefore,
I find that a penalty of $100.00, as proposed by the Secretary, is appropriate.
18. Citation
No. 8561180
It has been
established that this S&S violation of section 57.14115(b) was reasonably
likely to cause an injury that could reasonably be expected to result in lost
workdays or restricted duty, that Original Sixteen’s negligence was moderate,
and that it was timely abated. The Secretary proposed a penalty of $108.00. In
consideration of my finding as to gravity, I find that a penalty of $100.00 is
appropriate.
19. Citation
No. 8561182
It has been
established that this violation of section 57.4130(b) was unlikely to cause an
injury that could reasonably be expected to result in lost workdays or
restricted duty, that Original Sixteen’s negligence was low, and that it was
timely abated. The Secretary proposed a penalty of $100.00. In consideration of
my findings as to gravity and negligence, I find that a penalty of $70.00 is
appropriate.
20. Citation
No. 8561183
It has been
established that this S&S violation of section 57.9300(a) was reasonably
likely to cause an injury that could reasonably be expected to be fatal, that
Original Sixteen was moderately negligent, and that it was timely abated. Therefore,
I find that a penalty of $243.00, as proposed by the Secretary, is appropriate.
21. Citation
No. 8561185
It has been
established that this S&S violation of section 57.11012 was reasonably
likely to cause an injury that could reasonably be expected to result in lost
workdays or restricted duty, that Original Sixteen’s negligence was low, and
that it was timely abated. The Secretary proposed a penalty of $100.00. In
consideration of my finding as to negligence, I find that a penalty of $80.00
is appropriate.
ORDER
WHEREFORE, it is ORDERED that Citation Nos. 8561734 and
8561105 are VACATED.
It is further
ORDERED that Citation Nos., 8609870, 8561732, 8561733, 8561107, 8561178,
8561181, 8561184, 8561179 and 8561183 are AFFIRMED, as issued.
It is further ORDERED
that the Secretary MODIFY Citation No. 8561729 to reduce the degree
of negligence to “moderate;” Citation Nos. 8561730, 8561737 and 8561185 to
reduce the degree of negligence to “low;” Citation No. 8561735 to reduce the
level of gravity to “no likelihood;” Citation Nos. 8561736 and 8561106 to
reduce the level of gravity to “permanently disabling;” Citation Nos. 8561731
and 8561180 to reduce the level of gravity to “lost workdays or restricted
duty;” Citation No. 8561182 to reduce the level of gravity to “lost workdays or
restricted duty,” and the degree of negligence to “low;” and Citation No.
8561177 to reduce the level of gravity to “unlikely,” “non-significant and
substantial” and “no lost workdays,” and the degree of negligence to “low;” and
that the citations are AFFIRMED, as modified.
It is further ORDERED
that Original Sixteen to One Mine, Incorporated, PAY a civil penalty
of $2,113.00 within 30 days of the date of this Decision.25 ACCORDINGLY, these cases are DISMISSED.
/s/
Jacqueline R. Bulluck
Jacqueline
R. Bulluck
Administrative
Law Judge
Distribution:
Gregory W. Tronson, Esq.,
U.S. Department of Labor, Office of the Solicitor, 1999 Broadway, Suite 800,
Denver, CO 80202
Michael M. Miller, President,
Original Sixteen to One Mine, Inc., P.O. Box 909, Alleghany, CA 95910
/ss
1 The Secretary’s Motion for Partial Summary Decision
on MSHA’s jurisdiction over the mine was granted from the bench, incorporating
by reference an earlier decision finding jurisdiction, docket No. WEST
2009-63-M. Tr. 4-5.
2 Allard left MSHA in January 2012 and at the time of
the hearing, worked for the California Department of Industrial Relations,
Division of Occupational Safety and Health. Tr. 13-14.
3 At hearing, Original Sixteen withdrew contest of
Citation No. 8609870, and agreed to pay-in-full the Secretary’s proposed
penalty of $100.00. Tr. 111-12.
4 30 C.F.R. § 57.4201(a)(2) provides that: “Firefighting
equipment shall be inspected according to the following schedules: [a]t least
once every twelve months, maintenance checks shall be made of mechanical parts,
the amount and condition of extinguishing agent and expellant, and the
condition of the hose, nozzle, and vessel to determine that the fire
extinguishers will operate effectively.”
5 30 C.F.R. § 57.11050(a) provides that: “Every mine
shall have two or more separate, properly maintained escapeways to the surface
from the lowest levels which are so positioned that damage to one shall not
lessen the effectiveness of others. A method of refuge shall be provided while
a second opening to the surface is being developed. A second escapeway is
recommended, but not required, during the exploration or development of an ore
body.”
6 30 C.F.R. § 57.4560(a) provides that: “For at least
200 feet inside the mine portal or collar timber used for ground support in
intake openings and in exhaust openings that are designated as escapeways shall
be . . . a fire suppression system, other than fire extinguishers and water
hoses, capable of controlling a fire in its early stages [.]”
7 30 C.F.R. § 57.14115(b) provides that: “Stationary
grinding machines, other than special bit grinders, shall be equipped with
adjustable tool rests set so that the distance between the grinding surface of
the wheel and the tool rest is not greater than ⅛ inch [.]”
8 30 C.F.R. § 57.20003(a) provides that: “At all mining
operations [w]orkplaces, passageways, storerooms, and service rooms shall be
kept clean and orderly [.]”
9 “SQUARE” is an acronym for
Safety-Quality-You-Accountability-Responsibility Efficiency. Resp’t Br. at 16.
10 30 C.F.R. § 57.4104(a) provides that: “Waste
materials, including liquids, shall not accumulate in quantities that could
create a fire hazard.”
11 30 C.F.R. § 47.41 provides that: “The operator must
ensure that each container of a hazardous chemical has a label. If a container
is tagged or marked with the appropriate information, it is labeled.”
12 I note that the action taken to abate the condition, posting
a sign rather than labeling each unit, did not bring the containers into
compliance with section 47.41.
13 30 C.F.R. § 57.4131(a) provides that: “On the
surface, no more than one day’s supply of combustible materials shall be stored
within 100 feet of mine openings or within 100 feet of fan installations used
for underground ventilation.”
14 30 C.F.R. § 57.14100(d) provides that: “Defects on
self-propelled mobile equipment affecting safety, which are not corrected
immediately, shall be reported to, and recorded by, the mine operator. The
records shall be kept at the mine or nearest mine office from the date the
defects are recorded, until the defects are corrected. Such records shall be
made available for inspection by an authorized representative of the Secretary.”
15 Berglof
did not testify at the hearing. The Secretary called Inspectors Jerry Hulsey or
Joshua Love to testify, respecting citations issued by Berglof.
30
C.F.R. § 57.12030 provides that: “When a potentially dangerous condition is
found it shall be corrected before equipment or wiring is energized.”
16 30 C.F.R. § 57.4361(a) provides that: “At least once
every six months, mine evacuation drills shall be held to assess the ability of
all persons underground to reach the surface or other designated points of
safety within the time limits of the self-rescue devices that would be used
during an actual emergency.”
17 30 C.F.R. § 62.120 provides that: “If during any work
shift a miner’s noise exposure equals or exceeds the action level the mine
operator must enroll the miner in a hearing conservation program that complies
with § 62.150 of this part.”
18 30 C.F.R. § 57.14100(b) provides that: “Defects on
any equipment, machinery, and tools that affect safety shall be corrected in a
timely manner to prevent the creation of a hazard to persons.”
19 30 C.F.R. § 57.12004 provides that: “Electrical
conductors shall be of a sufficient size and current-carrying capacity to
ensure that a rise in temperature resulting from normal operations will not
damage the insulating materials. Electrical conductors exposed to mechanical
damage shall be protected.”
20 30 C.F.R. § 57.4130(b), pertaining to surface
electric substations and liquid storage facilities, provides that: “The area within
the 25-foot perimeter shall be kept free of dry vegetation.”
21 30 C.F.R. § 57.4130(a)(2) provides that: “If a hazard
to persons could be created, no combustible materials shall be stored or
allowed to accumulate within 25 feet of . . . [u]nburied, flammable, or
combustible liquid storage tanks.”
22 30 C.F.R. § 57.9300(a) provides that: “Berms 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.”
23 30 C.F.R. § 57.11012 provides that: “Openings above,
below, or near travelways through which persons or materials may fall shall be
protected by railings, barriers, or covers. Where it is impractical to install
such protective devices, adequate warning signals shall be installed.”
24 The presumption of Original Sixteen’s relevant
history as a non-aggravating factor is occasioned by the Secretary’s failure to
put in evidence the Assessed Violation History Report.
25 Payment should be sent to: Mine Safety and Health
Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St.
Louis, MO 63179-0390. Please include Docket numbers and A.C. numbers.
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