FMSHRC ALJ decision Docket WEST 2012-1042 Decided October 31, 2014 Mixed result Judge David F. Barbour

Secretary of Labor v. Ronald Sand & Gravel

Secretary of Labor v. Ronald Sand & Gravel (FMSHRC WEST 2012-1042): Ten violations upheld and penalties set at $1,366

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.

Final ALJ decision, not Commission precedent

This decision became final under the 40-day rule in 30 U.S.C. § 823(d)(1) because no later Commission review appears in the official index. It binds the parties but is not Commission precedent. The full text below is from the official FMSHRC release.

About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the Commission's own document.

Read the official release (fmshrc.gov)

Plain-English summary

MSHA cited Ronald Sand & Gravel for 11 safety, training, and reporting violations at its small basalt crushing operation. The allegations included failures to lock out equipment, provide required training, use hard hats and eye protection, guard moving parts, provide sanitary facilities, and file a quarterly employment report. Judge David F. Barbour credited much of the inspector's and former employee's testimony but rejected one hard-hat citation because the Secretary did not prove a falling-object hazard at the location involved. He also removed the S&S designation from the new-miner training citation after finding the omitted material limited and the company's negligence low. The remaining violations were upheld, and the Judge assessed total penalties of $1,366.

Decision snapshot

Cited standards: 30 C.F.R. §§ 46.6(a), 50.30(a), 56.12016, 56.14107(a), 56.15002, 56.15004, and 56.20008(a)
Outcome: One citation was vacated, one was modified to remove the S&S designation, the remaining violations were affirmed, and total penalties were $1,366.
Key point: Citation-specific proof controls both liability and gravity, even when an inspection identifies numerous basic safety and training failures at the same operation.

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

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH

ADMINISTRATION
(MSHA),

Petitioner,

RONALD
SAND & GRAVEL,

Respondent.

CIVIL
PENALTY PROCEEDING:

Docket
No. WEST 2012-1042

A.C.
No. 45-03628-28844

Mine:
Ronald Sand & Gravel

DECISION

Appearances: Sean
Allen, Esq., U.S. Department of Labor, Office of the Solicitor,
1244 Speer Boulevard, Suite 216, Denver, Colorado, on behalf of Petitioner

Louie Gibson, Ronald Sand & Gravel,
1221 S. Thorp Highway, Ellensburg, Washington, on behalf of Respondent

Before: Judge
Barbour

In
this proceeding arising under the Federal Mine Safety and Health Act, 30 U.S.C.
§ 801, et seq. (2012), the Secretary of Labor (“Secretary”) on behalf of
his Mine Safety and Health Administration (“MSHA”) alleges that Ronald Sand and
Gravel (“Ronald”) in 11 instances violated various mandatory safety, training,
and reporting standards for the nation’s metal and nonmetal mines.1 The Secretary further
alleges that six of the 11 purported violations were significant and
substantial contributions to mine safety hazards (“S&S” violations2), that 10 of

the
11 were caused by Ronald’s moderate negligence, and that one was caused by its
low negligence. Further, the Secretary asserts that the inspector who cited the
alleged violations made correct gravity findings. The Secretary proposes
penalties ranging from $243.00 to $100.00. In the aggregate, the proposed
penalties total $1,553.00.

After
the Secretary’s petition was filed, Louie Gibson, Ronald’s owner and operator,
answered on behalf of the company. The Commission’s Chief Judge assigned the
case to the court, and the court ordered the Secretary’s counsel to contact
Gibson to determine whether the case could be settled. After several
discussions with Gibson, counsel advised the court that the company wanted a
hearing and the case was noticed for hearing in Ellensburg, Washington. On
November 15, 2013, counsel stated that he intended to call a witness who, due
to fears of physical retaliation, preferred to testify remotely, e.g.,
via the telephone. Counsel also requested that the hearing take place in a
facility with full security, including metal detectors. During a subsequent
conference telephone call with counsel and Gibson, the court discussed the
possibility of transferring the hearing to the federal or county courthouse in
Yakima, Washington, both of which are subject to full security protocols. The
parties agreed to the transfer, even though it meant deferring the date of the
hearing. The parties also agreed to the court’s suggestion that another attempt
be made to settle the matter. The court appointed a settlement counsel. After
much back and forth, the settlement counsel reported his efforts had failed. Therefore,
the case was heard in Yakima on July 15, 2014. At the hearing, Gibson
represented the company.

TESTIMONY
OF GREGORY (“GREG’) NICHOLS

Gregory (“Greg”)
Nichols lives more than 500 miles from Yakima. He was sworn in and testified
via the telephone.3 Nichols
stated that he has 30 years or more of mining experience, but that his career
with Ronald was short. It began on March 9, 2012, when the company advertised a
job for an equipment operator. Nichols came to the mine to apply. Tr. 19, 21. Nichols
was hired and began work on Monday, March 12. He worked a full day on Monday. He
did not work on Tuesday, March 13. He worked a half day on Wednesday, March 14,
and then, he quit (his version), or he was fired (Ronald’s version). Tr. 21-22.

Nichols
described the mine as primarily a rock crushing facility at which basalt rock
is loaded from an excavator into a crusher and crushed to size. Tr. 23, 36-37. According
to Nichols the equipment at the site consists of an “impact mill[4], a rolls [(sic.)],
a screen deck and

some
. . . conveyor belts.” Id. Nichols maintained that prior to beginning
work he was not given any newly employed experienced miner training. Id.
Nor was he given a tour of the mine site. Tr. 24. He testified that he did not
receive any instructions in recognizing electrical hazards. Id. Emergency
medical procedures were not reviewed with him. He was not advised about the
mine’s evacuation plan or the health and safety aspects of the tasks to which he
would be assigned, and he was not advised of his rights under the Mine Act. Id.
Nichols stated that he was never asked to sign any training forms and that he
was never given any site specific hazard awareness training. Id.

Nichols
recalled that on his first work day, Gibson asked him to crawl inside the
impact mill to repair some plates, a task that required welding. Tr. 25. The
metal plates protected the mill from being damaged by rock during the crushing
process. Tr. 25-26. Nichols maintained that the entire time he worked on and in
the mill, it was not locked or tagged out. Tr. 26-25. Nichols stated that he
expressed concern about this to Gibson and that Gibson responded that Nichols
would “know when to get out [of the mill] when [he] heard the machine start.”
Tr. 27. As best Nichols could recall, the key for the mill’s motor was in its
ignition, at the top of the mill. Tr. 29, 30, 60. Had the key been turned in
the ignition, Nichols was “pretty sure” the engine driving the mill would have
started, and if the mill went into gear, Nichols stated that it would “have ate
me up.” Tr. 30, see also Tr. 31.

Nichols
also maintained that while he was welding inside the mill, Gibson and his helper
crawled over the outside of the machine changing some of the mill’s outer
plates. Tr. 27-28. The vibrations from their work and from the welding caused
dust and debris to fall on Nichols, some of which landed on his face. Id.
Nichols was also concerned about the pinch points to which he was subject
inside the mill. He stated that if the interior barrel of the mill rolled while
he was inside, his hands could be caught in the moving parts. Tr. 32-33.

Nichols
testified that he worked inside the mill for “an hour or so” before the mill
was activated and started crushing.5
Tr. 56. He testified that after he got out of the mill and it started running,
he greased a bearing on one of the conveyor belt rollers and freed some jammed
rollers. Tr. 33-34. He believed that the moving bearing and its mechanism were
not guarded. Tr. 34. Nichols stated, “You could just crawl up on the bearing
and get to the grease surface and grease that bearing while it was running. And
you were just . . . inches from the rolls while you’re greasing it.” Tr. 34-35 see
also Tr. 74. Nichols estimated that the bearing required greasing every 15
to 20 minutes. Tr. 35, 74.

After
production started, Nichols recalled Gibson feeding rock into the mill with the
excavator. Nichols described the work environment as harsh. He and Scott Dunsing,
the other miner on the job, worked,

for
eight hours straight in 28-degree weather with

the
snow blowing sideways and the dust going

everywhere
all over [Gibson’s] truck, all over

[Nichols’]
car, all over us. It was horrible.

Tr.
56.

Nichols
testified that while working at the mine he never was provided with safety
glasses or other eye protection, despite the fact the “dust and stuff was
really bad.” Tr. 41. Nor was he provided with ear protection. He always carried
his own ear plugs. Tr. 42. Further, there were no toilet facilities at the
mine. Tr. 43.

During
his first day on the job, Nichols, who had his own hard hat, did not wear it. Rather,
he wore a wool hat to stay warm. Tr. 38. Nichols recalled that Dunsing wore a
baseball cap. Gibson wore a hard hat, but intermittently. Tr. 38. In Nichols’
opinion, it was hazardous to go without a hard hat because when the mill was
operating, fly rock “pop[ped] out of the top

of
. . . [the mill’s] feeder.” Tr. 39. The fly rock could travel 20 to 25 feet. Nichols
believed that both he and Dunsing were exposed to the fly rock. Tr. 40. He
estimated that the fly rock averaged two to three inches in diameter. Id., 80.
He stated that when the mill was operating, rocks were “coming out of the sky
like meteorites.” Tr. 80. He also described the rocks as, “like bullets coming
down on top of you.” Id. Nichols maintained that Gibson told him to
stand away from the mill because of the fly rock. Tr. 81.

During
his brief time as an employee of Ronald, Nichols lived at the mine in the
generator shack (also referred to as the “well house”). Tr. 54. According to
Nichols, there was no port-a-potty at the well house, nor anywhere else at the
mine. Nichols claimed he “made do” with a bucket and some timbers. Tr. 75-76.

Nichols
maintained that on his third day (Wednesday), several problems arose with
defective equipment, and Nichols described Gibson as not “in a very good mood.”
Tr. 44. After a controversy between the two over whether or not Nichols knew
how to operate a grease gun, Nichols said to Gibson, “I can’t work for you,” and
Nichols prepared to leave the mine. Tr. 45. Nichols claimed that he reminded
Gibson that Gibson owed him money for the time he had worked and that he
decided to wait around for Gibson to pay him. Id. While he was waiting,
Dunsing appeared. Nichols testified that Dunsing was “pretty much crying that
[Gibson had] yelled and screamed at him and called him all these words and . .
. [Dunsing] asked . . . if I could give him a ride home. And I told him,
[s]ure[.]” Tr. 46.

Nichols
stated that before leaving the area he had another run-in with Gibson, one that
caused Nichols to pay a visit to the county sheriff. Nichols testified:

[Gibson]
was telling me he was going to turn me

in
for driving on a suspended license . . . And I

went
to the town hall and talked to the sheriff

there
about [Gibson] threatening me . . . but

it
was out of the sheriff’s jurisdiction . . . . So he

just
told me . . . .You can drive if you want,

just
go back to Wenatchee and get out of here.

Tr.
47.

After
meeting with the sheriff, Nichols stated:

I
was waiting around to get my pay. And it

took
a while so I went back to the mine . . .

and
there was a bunch of guys there, all

[Gibson’s]
friends . . . and I’m sure

[Gibson]
told them about me.

Tr.
47.

According
to Nichols, at some point before he left the county, Gibson called Nichols

“a
few names” (Tr. 47), and on Wednesday, December 14, an unnamed employee of
Gibson’s allegedly told Nichols never to come back to the area where the mine
was located, that if he returned, he would be killed. Tr. 48. Nichols testified
that the threat prompted him to call MSHA and report conditions at the mine
that Nichols believed to be hazardous. Nichols stated:

[T]he
employee told me never to come back to

this
valley or he’d shoot me. And he told me

he
was going to call the police on me for driving

on
a suspended license.

After
he threatened me . . . [t]hat’s when I called

MSHA.

Tr.
52-53.

Also,
on that Wednesday, Nichols sent a text to Gibson confirming that he was
quitting, that he was, as he put it, “done running [the] crusher.” Tr. 64. According
to Nichols, Gibson responded, “You coward, get your ass back up here . . . come
back up to the mine.” Tr. 66. Nichols replied to Gibson, “I guess some people
have to learn the hard way.” Tr. 67. When asked by Gibson what he meant,
Nichols stated:

That
means . . . [y]ou’re going to learn that you can’t

go
do that to people and stick people in that

position
and treat people that way. That’s what that

text
means.

Tr.
67.

Gibson
testified that when he called MSHA (Tr. 47-48), he told the person who answered
that he wanted an inspector to “come out [to the mine] and see . . . . what
[Gibson] put [his] employees through.”6
Tr. 65

TESTIMONY
OF INSPECTOR DEAN BROOKS

Nichols’
call led MSHA to send its inspector, Dean Brooks, to the mine. However, before
traveling to the mine, Brooks went to Nichols’s home where he and Nichols
talked about Nichols’s experiences at the mine and about conditions there. Tr.

Then, on March 16, Brooks inspected the mine. Tr. 95.

Brooks
testified that he has worked for MSHA for approximately nine years. He
estimated that approximately 80% of his time has been spent inspecting mines.
Tr. 90. Brooks stated that prior to his March visit he inspected Ronald’s
operation approximately four or five times. Tr. 92, 112. He described the mine
as “set up on the side of a hill.” Tr. 92. Brooks recalled the overall mine
site as being approximately 300 feet long by 140 feet wide. Tr. 92. He believed
that the area had been cleared by using an excavator and a bulldozer. Id.
In addition to the crushing plant, there were areas for parking equipment and
stockpiling product. Id.

Brooks
testified that his March 16 visit to the facility was ordered by his supervisor
in response to Nichols’ “hazardous condition” complaint. Tr. 95. Upon arriving
at the mine, Brooks determined that mining activity had taken place. According
to Brooks, rock had been crushed, sized, and sorted. Although Brooks agreed
that mining activity occurred “sporadically,” the stockpiles of product
indicated to Brooks that the mine “had been in production.” Tr. 98. Brooks
also noted that haul trucks were used at the mine, as were excavators, a water
truck, and pickup trucks. Tr. 97. Upon arriving, Brooks met with Gibson. Tr.

At the time, mining was not in progress, but maintenance activities were
underway. Id.

The March 16 inspection resulted in the
issuance of several citations for violations of mandatory safety, training, and
reporting standards. During the course of his testimony, Brooks described the
conditions that lead him to issue each of the citations. Tr. 106-258.

TESTIMONY
OF INSPECTOR MICHAEL NELSON

Michael
Nelson is an MSHA inspector and accident investigator. Tr. 260-261. Nelson has
been with MSHA since 2009. Nelson testified that he has inspected “[p]robably
hundreds” of sand and gravel crushing operations. Tr. 261. On March 6, 2012,
ten days before Brooks’ visit, Nelson conducted a compliance assistance visit
at the Ronald facility. Tr. 262, 263. The plant, which was not yet in
operation, was partially set up. Nelson went to the facility because the
company was installing a new crusher. Tr. 262-263. Nelson stated that the
purpose of his visit was to “point out violative conditions or practices” with
regard to the new operation and give the company an opportunity to correct
potential violations before work began. Tr. 263. Nelson maintained that he
pointed out several possible violations with regard to guarding on the crusher.
Tr. 264. He also believed he spoke with someone about lock out/tag out
procedures, although he could not recall if Gibson was involved in the
discussion. Tr. 265, 270.

LOUIE
GIBSON

Louie
Gibson testified on behalf of the company. He maintained that everything
Nichols alleged was a lie. Tr. 272. According to Gibson, Nichols was motivated
to lie because he was fired and he wanted to “get back” at Gibson. Id. Gibson
pointed out that Nichols only contacted MSHA after he was let go. Id.

CITATION
NO. DATE 30 C.F.R. §

8566007 3/16/2012 56.12016

The
citation states:

The
portable crusher/screen plant, electrically

powered
equipment that was being worked on

was
not properly locked out before beginning

work.
Two miners were observed installing

guards
and doing other maintenance around the

plant
and while the main power-supply gen-set

was
locked out, no tags were placed to indicate

who
had put them there or why the generator

was
locked out. Were an accident to occur

because
proper lock-out/tag-out procedures were

not
followed a serious injury could result.

Gov’t
Exh. 3.

Brooks
testified he issued the citation because the company had not “follow[ed] proper
lock out/tag out procedures.” Tr. 106. In Brooks’ opinion the company’s failure
subjected its miners to the hazards of becoming entangled in the equipment or
of being injured by rocks coming off the conveyor. Id. Such accidents
could be fatal. Id.

Brooks stated
that lock out/tag out procedures “are taken extremely seriously by MSHA because
of the seriousness of injuries that occur” when they are not followed. Id.
He found, however, that an accident was “unlikely.” Gov’t Exh. 3. Because the
mine is small, there were few miners exposed to the hazard, and the miners all
knew one another and where each miner worked. Tr. 107. Brooks therefore
believed that the likelihood of a miner being hurt due to the violation “was
pretty slim.” Id.

Nonetheless,
in Brooks’ view, Gibson should have known about the miners’ failure to follow
proper lock out/tag out procedures because the standard is “fairly plain,” the
condition was “fairly obvious” and Gibson had a training program covering lock out/tag
out requirements and was familiar with the requirements. Tr. 109.

Gibson
asked Brooks if any names were written on the sides of the locks, and Brooks
stated that he could not recall. Tr. 114, 127.

THE VIOLATION,
ITS GRAVITY, AND THE COMPANY’S NEGLIGENCE

Section
56.12016 requires that before mechanical work is done on electrically-powered
equipment, “[p]ower switches shall be locked out” and “suitable warning notices
shall be posted at the power switch and signed by the individuals who are to do
the work.” Brooks’ testimony and his contemporaneous notes establish that work
was being done on the electrically powered crusher and although the electricity
to the plant was locked out, no signed tags were in place warning that work was
being done on the plant and identifying those doing the work. Gov’t Exh. 3 at

In other words, the power switch for the crusher was not properly tagged
out. Tr. 106.

The
violation was very serious in that a failure to follow proper lock out/tag out
procedures could lead to the power being restored while maintenance work was
ongoing and when a miner was in the vicinity of the plant’s moving parts. A miner
easily could be seriously injured or killed. Tr. 106. However, as Brooks
explained and found, such an accident was unlikely. Id. Gov’t Exh. 3 at

The fact that very few miners worked at the mine and that the miners were
aware of one another’s presence and assigned tasks significantly reduced the
chances power would be mistakenly restored to the plant. Tr. 106.

The
violation was the result of moderate negligence on Ronald’s part. Brooks acknowledged
the company trained its miners in lock out/tag out procedures. Tr. 109. Nonetheless,
the court accepts Brooks’ characterization of the lack of signed warning
notices as “fairly obvious.” Tr. 109. Gibson should have recognized the
violation and corrected it. He did not. Thus, he, and through him, the company,
failed to meet the standard of care required.

CITATION
NO. DATE 30 C.F.R. §

8566008 3/16/2012 56.20008

The
citation states:

At
the mine-site . . . toilet facilities readily accessible

to
mine personnel and truck drivers was [(sic)] not

provided.
There is a crushing plant set up and at

least
one miner works on-site, running the plant,

doing
maintenance or loading trucks, sometimes

for
8-hours or more at a time. The nearest toilet

is
located in a private residence approximately

400
yards away. The renters have dogs that run

free
and whether the toilet there is available is

uncertain.
Were a miner to have an accident

because
conveniently located and accessible

sanitary
facilities did not exist an injury could

result.

Gov’t
Exh. 5.

According
to Brooks, during the course of the inspection on March 16, he asked Gibson if
there was a port-a-john at the mine. Brooks stated that Gibson responded:

he
didn’t think he needed to have one . . . because he owns

a
. . . [nearby] house . . . . And that he has permission to go in

there
and use the bathroom. And I think at that time I asked

him
who lives in the house and he said there’s renters there

but
they won’t mind. And then . . . I made a note that there

were
a couple of dogs running around the house. And this

is
some distance from the mine site . . . 400 yards.[7]

And
there wasn’t much of a path going across the field[.]

Tr.
119.

In
the inspector’s view, the conditions did not meet the requirements of the
standard, which provides that toilet facilities be “compatible with the mine
operations and . . . [that they be] readily accessible to mine personnel.” 30
C.F.R. §56.20008(a). Brooks’ finding that there was no “readily accessible”
sanitary facility at the mine was based on the fact that there was no
port-a-john at the mine, that the rental house was approximately 400 yards
away, and that the renter’s dogs were not leashed. Tr. 121. Brooks concluded
that although the condition was unlikely to result in an injury (Tr. 122-123),
Gibson should have known that the off-site house did not meet that standard and
therefore that the company, through Gibson, was moderately negligent. Tr. 124,
Gov’t Exh. 5.

THE
VIOLATION, ITS GRAVITY, AND THE COMPANY’S NEGLIGENCE

Brooks
was a credible witness and the court finds the conditions, which are restated
in his contemporaneous notes, existed as he described. See Gov’t. Exh.

Further, the court agrees with Brooks that the “arrangement” to use the
bathroom at the rental house did not comport with the standard in that the bathroom
was not “readily accessible.” Even if the house was 100 yards from the mine, as
suggested by Gibson (Tr. 125), the presence of the unleashed dogs hindered
miners’ access to the bathroom. The court also agrees with Brooks that the
violation was unlikely to cause an accident. Gov’t Exh. 5. The violation was
not serious, and the court further agrees with the inspector that Ronald’s
negligence was “moderate.” Id., Id. at 2. The court has no doubt
that Gibson genuinely believed the house was suitable and in compliance, but,
as the court has found, the presence of the unleashed dogs alone should have
alerted him to his error.

CITATION
NO. DATE 30 C.F.R. §

8566009 3/16/2012 56.15004

The
citation states:

A
miner was observed doing maintenance work around

the
crusher/screen plant at the Parke Road mine site

when
he was not wearing safety glasses or other eye

protection.
He was doing maintenance at the time and

using
tools where there could be impact or abrasion.

The
plant which normally produces crushed rock was

down
for maintenance at the time. This is a windy

location
and there is dust that gets blown around and

fly
rock is generated by the crusher, screens and

loading
operations. When questioned, the miner stated

he
didn’t like wearing eye protection as it’s too hard

to
keep clean and admitted he didn’t always wear

safety
glasses when running the plant. Were a miner

to
be struck in the eye because he was not wearing

eye-protection
a serious injury could result.

Gov’t
Exh. 6.

Brooks
testified that he issued the citation because during the inspection he saw
miners who were not wearing eye protection while working in a location where
there might be a hazard to the miners’ eyes.8 Tr. 127, 136. The miners were Gibson and another man
who was working with him.9
They were engaged in maintenance and repair work. Brooks also noticed dust
being picked up by the wind where the men were working. He believed that the
dust posed a hazard to the men’s unprotected eyes. Tr. 128, 139. Brooks
therefore cited the company for a violation of section 56.15004, a mandatory
safety standard requiring persons to wear safety glasses when in or around an
area of a mine where a hazard exists which could cause injury to their
unprotected eyes. By failing to wear eye protection, the miners exposed
themselves to the possibility of a foreign object striking one or both of their
eyes. Tr. 127-128. Brooks testified that he asked Gibson why he was not wearing
eye protection, and Gibson responded that “he didn’t like wearing eye
protection as [it was] too hard to keep clean.” Tr. 129. Brooks stated that
Gibson also told him that he didn’t always wear safety glasses when running the
plant. Id.

Brooks
found the condition to be S&S. He explained that he did so because he saw
the miners working in conditions that could have resulted in scratched corneas
“or worse.” Tr. 134. Brooks also feared that chips from rocks flying off the
crushing equipment could lodge in the miners’ eyes, although Brooks admitted
that he did not see any fly rock while the men were working around the
equipment. Tr. 132.

He
believed that the company was moderately negligent in not requiring the miners
to wear safety glasses. Brooks stated that Gibson “didn’t do everything in his
power to make sure that everyone on that site was wearing safety glasses.” Tr.

Brooks felt that most people would think there was an eye protection
problem at the mine given the dust and other flying material. Tr. 136.

THE
VIOLATION, ITS S&S NATURE, ITS GRAVITY,

AND
THE COMPANY’S NEGLIGENCE

The citation
charges the company violated section 56.15004, and the evidence more than
proves the violation. Brooks’ testimony that the area where the miners were
working was very dusty was not refuted, and the court finds it to be a fact. Nor
was his testimony contradicted that the miners were not wearing safety glasses
even though the dust posed a hazard to their unprotected eyes. Tr. 128, 139. On
the basis of these facts, the court finds a violation of section 56.15004.

The
court further finds that the violation was both S&S and serious. The court
has found a violation of section 56.15004. The court further finds that the
discrete health hazard presented by the violation was damage to the eyes of the
miners who chose not to wear eye protection. As Brooks observed, scratched
corneas or worse could have been the result. Tr. 134. The court concludes that
assuming continued maintenance activities in the blowing dust, it was
reasonably likely that the lack of eye protection would cause at least one
scratched cornea. This is especially true as the court credits Brooks’
testimony that Gibson said that he did not like to wear safety glasses because
they were too hard to keep clean and that he did not always wear them when
running the plant. Tr. 129. The impairment of vision that would result is a
serious injury. The fact that a serious injury could result from the violation
means that the violation itself was serious as well as S&S.

The
court further finds that the company’s negligence was high. Brooks maintained
that Gibson “didn’t do everything in his power to make sure that everyone on
that site was wearing safety glasses.” Tr. 135. This is undoubtedly true, and
the evidence supports finding that Gibson was still more culpable. He was one
of the miners who worked in the swirling dust without safety glasses. Tr. 129. As
the on-site manager, he was called to a high standard of care, one that he
utterly failed to meet.

CITATION
NO. DATE 30 C.F.R. §

8566013 3/20/2012 46.6(a)

The
citation, as modified, states:

This
violation occurred on 3/12/12. A miner

working
at the mine was put to work doing

maintenance
and repair procedures and other

activities
without first being given new miner

training.
Two other miners were working at

the
mine at the time. The [Mine Act] declares

that
an untrained miner is a hazard to himself

and
others. Were an accident to occur because

a miner was not trained a serious injury

could
result.

Gov’t
Exh. 7.

As
previously described, Brooks met with Nichols at Nichols’ home. Tr. 138-139,

During the course of their meeting, Nichols told Brooks that before he
started working at the mine, he was not given any training. Tr. 144-146. Following
their talk, Brooks visited the mine and issued a citation alleging the company
violated section 46.6(a) by putting Nichols to work without first giving him
newly employed experienced miner training as required by the regulation. Tr.
142-143; Gov’t Exh. 7. Brooks issued the citation despite the fact that the
company maintained records purporting to show that Nichols had in fact been
trained. Brooks identified a document titled “New Task Training
Record/Certificate.” Gov’t Exh. 9; Tr. 146. The form states that it pertains to
Nichols. Brooks testified that he saw the form at the mine although he could
not recall when. Tr. 146. The form, which is dated March 12, 2012, indicates
the subjects covered during the purported training and the time spent on
training for each specified piece of equipment. Gov’t Exh. 9. Brooks noted that
the form lists all of the equipment at the mine site and indicates that Nichols
was trained on everything listed. Tr. 147; See Gov’t Exh. 9. However,
Brooks also noted that although the form has a space titled “Miner’s Initials,”
Nichols’s initials do not appear anywhere on the document.10 Tr. 148.

In
addition, Brooks identified a document entitled “Site-Specific Hazard Awareness
Training Record/Certificate.” Gov’t Exh. 9 at 2. Brooks noted that the document
is signed by Gibson and that it indicates Nichols was given site-specific
training for 45 minutes on March 12. Tr. 148-149. Further, Brooks identified a
document titled, “New Miner Training Record/Certificate,” which is signed by
Gibson and which indicates that Nichols received almost 14 hours of training on
March 12. Gov’t Exh. 9 at 3. Adding up all of the training that the forms
indicate was given to Nichols on March 12, Brooks calculated that Nichols
received 21 hours of training.11
Tr. 150. Brooks was skeptical the forms reflect the truth. Brooks stated:

[Nichols]
says he only worked between nine and

14
hours total. And he described much of that

time
being spent inside the crusher or working

around
the plant while the plant was running. So

I
don’t see how he could have possibly received this

much
training. And certainly not on [March 12] . . . .

So,
something’s not right.

Tr.
150.

Although
Brooks agreed it is theoretically possible to give a miner 21 hours of training
in a day, he stated that he found it “unlikely.” Tr. 150. However, Brooks also
agreed that it is permissible to give training on several pieces of equipment
at the same time and that there is nothing in the regulations stating how long
the training must be. Tr. l58. The regulations simply require that the training
must be “adequate.” Id. Given the possibility of the overlap in hours,
Brooks could not “say for sure if [Gibson] did or didn’t provide the training.”
Tr. 159.

Gibson,
on the other hand, was adamant that he gave Nichols the required newly employed
experienced miner and site specific training. He stated, “[T]hat’s exactly what
we done.” Tr. 160. He testified he provided Nichols with an introduction to the
mine that was site specific, he gave Nichols a tour of the mine, he instructed
him on recognizing and avoiding electrical hazards, he reviewed the mine’s
emergency medical procedures with Nichols, he reviewed the mine’s emergency
evacuation plans, he talked to Nichols about traffic patterns and control of
mobile equipment, and he spoke with Nichols about hazardous materials on the
work site. Tr. 274-275. According to Gibson, all of the training was given on
March 12 while the crusher was being set up. Tr. 276. But, when asked if he gave
Nichols instructions on his statutory rights under the Act, Gibson candidly
stated he did not. Tr. 275. (He tartly commented that Nichols “knew those
evidently.” Id.) Nor did he explain the company’s rules for reporting
hazards. Id. (“I don’t think I did. I don’t think I understand that
one.” Id.)

Brooks
found that the violation was reasonably likely to result in fatal injuries to
Nichols. Gov’t Exh. 7; Tr. 153. He stated that an untrained miner is a “hazard
to himself and others.” Id. He noted that Nichols had been exposed to
the various hazards that he, Brooks, had found, while Nichols worked as an
untrained miner.12 Brooks
thought it reasonable to expect a fatal injury to occur as a result of the lack
of training. Tr. 155, Gov’t Exh. 7. Brooks was especially concerned about the
company’s alleged failure to follow required lock out/tag out procedures while
Nichols was inside the crusher and about Nichols being struck by fly rock when
working near the crusher or being entangled in the crusher’s rolls. Tr. 156.

Brooks
believed the company was moderately negligent. Gibson had a training plan in
place, as well as policies regarding training. Brooks did not think that Gibson
had intentionally denied Nichols training. Rather, he believed that the need to
train Nichols had been “overlooked.” Tr. 157.

THE
VIOLATION, ITS S&S NATURE, ITS GRAVITY,

AND
THE COMPANY’S NEGLIGENCE

Section
46.6(a) requires an operator to provide a newly employed experienced miner with
specific training before the miner begins work. Seven areas of required
training are detailed: (1) an introduction to the work environment; (2)
recognition and avoidance of electrical and other hazards; (3) a review of
emergency medical procedures; (4) instructions in the health and safety aspects
of the tasks to be assigned; (5) instruction on the statutory rights of miners;
(6) a review and description of the line of authority of supervisors and miners’
representatives and their responsibilities; and (7) an introduction to the
rules and procedures for reporting hazards. 30 C.F.R. §46.6(b)(1)-(7). The
court concludes the evidence establishes a violation of the standard, but that
the violation was not as extensive as the Secretary contends.

The
Secretary’s allegation, as expressed in the citation, appears to be that
Nichols was put to work without being given any new miner training. Gov’t Exh.

The court finds that the evidence is insufficient to make such a finding. The
burden of proving the allegation is on the Secretary, and although Nichols
testified he was given no training (Tr. 24), Gibson was certain that this was
not so, that Nichols was provided with training. Tr. 160, 174-175. For his
part, Brooks admitted that he “could not say for sure” if the required training
was or was not provided. Tr. 159. The court finds the evidence on the issue of
the company failing to provide all required training before Nichols was put to
work to be at best in equipoise, which means the Secretary failed to carry his
burden.

However,
subsumed within the allegation of an all-encompassing violation of the
standard, is the allegation that particular parts of the standard were
violated, and here Gibson’s admissions support finding a limited violation.
Section 46(b)(5) requires that a newly employed experienced miner be instructed
on the statutory rights of miners under the Act. Gibson admitted that Nichols
was not trained in this regard. Tr. 275. Section 46.6(b)(7) requires that a
newly employed experienced miner be introduced to the company’s rules and
procedures for reporting hazards. Gibson also admitted that Nichols was not
trained in this regard. Id. Therefore, the court finds that in these two
instances, Ronald violated section 46.6(a).

The
court also finds that the violation was neither S&S nor serious. In neither
instance were the hazards contributed to by the violation reasonably likely to
lead to injuries of a reasonably serious nature. It is important to recognize
that Nichols was a knowledgeable, experienced miner, not a starry-eyed
neophyte. Nichols was familiar with the Mine Act and MSHA’s role in
enforcement. He knew how to report hazards to the agency and he also knew if he
chose to do so, he could report them to Gibson. It is therefore unlikely the
violation would have led to any injuries at the mine.

The
court further finds that the company’s negligence was low. As Brooks
acknowledged, the company had a training plan and training policies in place.
Tr.157. The court agrees with Brooks that Gibson’s failure to instruct Nichols
on his statutory rights and his failure to introduce Nichols to the company’s
rules and procedures for reporting hazards was not intentional. Tr. 157. Gibson
was in a hurry to begin crushing, and the court believes that Brooks was
probably correct when he stated that Gibson “overlooked” his duty to fully
comply with section 46.6(b). Tr. 157. Thus, while the record supports finding
that Gibson did not meet the standard of care required of him, it also supports
finding that he was not far off the mark.

CITATION
NO. DATE 30 C.F.R. §

8566010 3/20/2012 56.12016

The
citation states:

A
violation occurred on 3/12/21012. Miners were

reported
to have been working inside and around

exposed
moving parts of the . . . horizontal

impactor/crusher
without it being properly locked

out.
Power to the crusher is provided by a diesel

drive
motor (direct drive) that is started with an

electric
starter. According to a witness, the key

was
in the ignition at the time and the functional

starting
mechanism was beyond the immediate

physical
control of the miners doing the work.

Were
an accident to happen because the crusher

was
not adequately locked out while miners were

working
inside, a serious injury could result.

Gov’t
Exh. 10.

Section
56.12016 requires in part that “Electrically powered . . . equipment be deenergized
before mechanical work is done on such equipment.” It also requires that
“[p]ower switches . . . be locked out or other measures taken which shall
prevent the equipment from being energized without the knowledge of the
individuals working on [the equipment].” According to Brooks, who based the
alleged violation upon what Nichols told him, the company violated the standard
by leaving the key for starting the crusher in the ignition while Nichols was
working inside the equipment. Tr. 165. Brooks stated:

He
told me that the key was in the ignition while

he
was working inside. And that he didn’t have

control
over the starting mechanism for that

particular
unit while he was inside it.

Tr.
166.13

As
Brooks understood it, Nichols was “doing maintenance and repairs to the inside
portion of the . . . [crusher].” Tr. 166. Brooks assumed that Gibson ordered
Nichols to work inside the machine where Nichols was exposed to a “significant
hazard.” Tr. 166. With the key in the ignition, the impactor’s starting
mechanism was not disabled. Because the unit could be started with the key, the
standard was violated. Id. To comply with the standard, the key should
have been “pulled out of the ignition and [been] in [Nichols’] possession.” Tr.

If someone turned the key while it was in the ignition, the equipment’s
drive motor would start, its clutch mechanism would divert the drive motor’s
energy to the v-belts, and the crusher would begin to turn. Tr. 174. At that
point, Nichols would have been “dragged forward on the conveyor belt,” caught
in the mechanism, and seriously injured or killed. Tr. 175; see also Tr.
Recognizing that he based the alleged violation solely upon what Nichols
said, Brooks added that he found Nichols credible because, “he knew enough
about mining . . . to convince me that he was credible in the events that he
was describing.” Tr. 179.

Brooks
concluded that a very bad accident was “reasonably likely” to befall Nichols
because there was nothing to prevent one from happening. Tr. 180. Brooks also
found that the operator, through Gibson, was moderately negligent in allowing
the violation. He noted that Gibson is qualified to train miners and that as a
qualified trainer, he is supposed to know the requirements of the law. Tr. 182.
He should have known that a miner cannot go into a crusher without the
crusher’s key in his or her pocket. Id. Brooks described the hazard created
by the violation as “pretty obvious.” Tr. 183. However, he did not believe that
Gibson intended to expose Nichols to harm. Tr. 183.

THE
VIOLATION

Brooks was clear
that he based the alleged violation solely upon what Nichols told him. Tr. 178.
He found Nichols credible in this regard, and so does the court. As Brooks
stated, Nichols’ story was not “a story most people would make up.” Id. Moreover,
Gibson did nothing to rebut Brooks’ version of the facts. Although at the time
of the alleged violation another miner was working on site, Gibson did not
offer testimony by the miner as to the location of the key. Nor did he
otherwise refute Brooks’ testimony. The court therefore finds that on March 12,
2012, Nichols was working inside the crusher and the key to the diesel motor
that powered the equipment and caused it to move was in the motor’s ignition. There
was nothing to “prevent the [crusher] from being energized without the knowledge
of the person working on [or in] it.” Section 56.12016. Ronald clearly violated
the standard, as Brooks found.

S&S AND
GRAVITY

Brooks
found the violation was S&S and reasonably likely to result in a fatal
injury to Nichols. Gov’t Exh. 10. The court agrees. There was a violation. There
was a discrete safety hazard contributed to by the violation, in that with the
key in the ignition, the compactor could have been started unbeknownst to
Nichols, who being unable to quickly escape, easily could have been maimed or
killed. Tr. 175, see also Tr. 171. There also was a reasonable
likelihood the hazard contributed to (the inadvertent starting of the crusher
while Nichols was inside) would result in an injury. First, as mining continued
and Nichols worked inside the crusher, he was not visible to anyone starting
the crusher’s motor. Second, the rush to start production at the facility,
increased the likelihood the crusher would be started without a careful
determination of Nichols’ whereabouts. Once the key was turned and the crusher
began operating, Nichols would have been in dire danger of dismemberment or
death. Taken together these factors establish the S&S nature of the
violation.

Moreover,
when considered in the context of the result of the injuries that were likely
to occur (dismemberment or death) due to the violation, the court concludes
that the violation was very serious.

NEGLIGENCE

Brooks found
that the company was moderately negligent in allowing the violation (Gov’t Exh.
10, Tr. 183), but the court, having considered the evidence, finds that the
company’s negligence was high. For all intents and purposes, Gibson was acting
for the company. He was present when the violation took place. He placed one of
his employees in a location and in a situation that easily could have led to
the employee’s serious injury or death. These factors mean that Gibson, and
hence the company, failed to meet the high standard of care expected of him. Moreover,
there were no mitigating circumstance. Gibson knew where Nichols was and he
knew or should have known where the key was located. Further, Gibson was
qualified to train his miners in the safety procedures called for by the Act
and its regulations. Tr. 182. He was aware, knew, or should have been aware of
what section 56.12016 requires. Despite this, he allowed the very serious
violation to take place under his nose.

CITATION
NO. DATE 30 C.F.R. §

8566015 3/20/2012 56.14107(a)

The
citation states:

This
viola[tion] occurred on 3/12/2012 and was

reported
to MSHA during a hazard complaint

investigation.
A miner accessed an elevated

platform
next to the . . . crusher to grease the

shaft
bearing while the shaft was running. The

grease
fittings were located near the exposed

shaft
end and shaft bearing and while there the

miner
was close (within 12 inches) to the

unguarded
rotating drum roller. Were a miner

to
contact the moving parts a serious injury

could
result. The Operator stated that they

only
do this when the plant is shut down and

locked
out.

Gov’t
Exh. 12.

Shortly
after Nichols wrote the citation for the violation of the lockout procedures (Citation
No. 8566010), he wrote Citation No. 8566015, alleging a violation of section
56.14107(a) Tr. 189; Gov’t Exh. 12. The standard provides that all moving
machine parts must be guarded against contact.14 Nichols told Brooks that on March 12 he encountered
an entanglement hazard when he was directed to climb on the crusher and stand
inches from its moving parts so he could grease a bearing while the crusher was
operating.[15]
Tr. 193. There was, according to Nichols, no guard on the crusher’s roller and
its bearing.16 Tr. 195. When the machine is operating
the shaft in which the bearing is located spins. Tr. 193. Gov’t Exh. 12 at 5. To
grease the bearing, Nichols had to stand on a platform adjacent to the
unguarded and spinning bearing and shaft.Tr. 191-192. This put him inches from
the moving parts (Tr. 198) and exposed Nichols to the hazard of becoming
entangled in the parts. Tr. 192. Once he was caught by the moving bearing or
shaft, Nichols could have been drawn into the roller’s pinch point. Id. Brooks
believed Nichols would have been lucky to only lose an arm. Tr.193. Brooks
stated that he was not surprised Nichols reported the condition because, in
fact, the mine was not a safe place to work. Tr. 199. Brooks maintained that if
Nichols had not told him about the condition, he still would have cited it
based on what he saw when he inspected the mine. Tr. 194. He described what he
observed as an “exposed moving machine part next to an area [which] somebody
could access.” Tr. 195.

Brooks
believed that working close to the moving parts made inadvertent contact
reasonably likely to occur. Tr. 193. It would take only a “momentary lapse of
consciousness” for Nichols to place his hand on the shaft or for Nichols to
slip and fall onto the parts. Tr. 193. In addition, Nichols said that Gibson
instructed him to grease the bearing of the shaft. Tr. 196. Therefore, in Brooks’
opinion, Gibson should have known about the lack of a guard. It was visually
obvious and other moving machine parts were guarded. Id.

Nelson
maintained that during the compliance assistance visit, he specifically told
Gibson the area needed to be guarded. Tr. 266. Gibson, however, disputed
Nelson’s account. Gibson asserted that the unguarded area about which Brooks
and Nelson testified was not the area cited by Brooks. Tr. 268.

To
abate the condition the company installed remote grease lines, thus eliminating
the need for a miner to be adjacent to the moving parts. Tr. 197. Gibson also
eliminated the platform where Nichols stood and retrained miners about exposure
to moving parts. Id.

THE
VIOLATION

The
record fully supports finding the company violated section 56.14107 as alleged.
Brooks faithfully reiterated what Nichols told him, and what Nichols said was
confirmed by what Brooks saw. Tr. 195. The court finds that a miner could come
within a few inches of the unguarded moving parts and that the parts could
cause a serious injury if they were contacted by the miner. The court concludes
that the cited area should have been guarded. It was not.

S&S
and GRAVITY

The
violation was both S&S and serious. The first element of the Mathies
test was established in that the company violated the standard. The second element
– that is a discrete measure of danger to safety contributed to by the
violation – also was met. The lack of a guard to prevent access to the moving
parts meant that a miner was subject to a severe injury should the miner become
entangled in the parts. The third element – a reasonable likelihood that the
hazard contributed to will result in an injury – was established as well. The
work assigned to Nichols put him within inches of the unguarded moving part. While
there is no evidence his footing was insecure or that he was otherwise likely
to slip, the court takes judicial notice of the fact that being so close to the
unguarded, moving parts meant that Nichols’clothing or hand was likely to
contact the moving parts. A small move in the wrong direction, a dropped tool,
or simply a moment of inattention, and Nichols would have been caught. Finally,
Brooks’ testimony clearly established that the fourth element of the Mathies
test was met and that the violation was serious. Brooks noted, and there is
really no dispute, that once entangled in the moving parts, Nichols would have
been lucky if he only lost an arm. Tr. 193.

NEGLIGENCE

Brooks
found the company was moderately negligent, and the court agrees. As Brooks
testified, Gibson should have known of the violation. Gibson assigned Nichols
to grease the equipment. Tr.196. Nelson and Gibson clashed over whether Nelson
advised Gibson the area needed to be guarded, and the court finds there is
insufficient corroborative evidence to determine who is correct. Tr. 266, 268. Therefore,
the court concludes that the evidence does not establish the company was on
actual notice guarding was required. The court finds, as Brooks testified, that
other moving machine parts were guarded as required (Tr. 196) and notes there
is no evidence that the company habitually failed to comply. Nonetheless, the
lack of a guard was visually obvious. Had the company exercised the care
required by the circumstances, a guard would have been in place.

CITATION
NO. DATE 30 C.F.R. §

8566011 3/20/2012 56.15004

The
citation states:

This
violation occurred on 3/12/2012. At

least
2 [m]iners were reported to have been

seen
working around and inside the . . .

crusher
where there was dirt and airborne

dust
and possible metal fragments that could

be
knocked loose and present a hazard to the

face
and eyes. They were hard-face welding

and
replacing worn metal plates at the time.

Safety
glasses or goggles were not being

worn
and reportedly not provided on-site.

Were
an accident to occur because the

miners
were not wearing eye protection

when
working in a hazardous location a

serious
injury could result.

Gov’t
Exh. 13.

Brooks
issued the citation for an alleged violation of mandatory safety standard
C.F.R. §56.15004.17 When asked why, Brooks replied,
“Nichols told me that he had observed miners working on [the] impact crusher
without wearing safety glasses.” Tr. 202. He further stated, “[T]hey weren’t
wearing eye protection. That’s what the violation is.” Tr. 203. Brooks
emphasized that Nichols told him when he, Nichols, was working at and in the
crusher, dirt and debris were “raining down on him.” Tr. 203. In addition, when
the crusher was operating there was a hazard to unprotected eyes from fly rock
and dust. Tr. 204. The dust was especially prevalent when the crusher was started,
something that Brooks also observed at other crusher installations. Id. Nichols
described the dust as “very bad,” and he told Brooks that other miners
commented about the problem. Tr. 205. Brooks stated that he too believed that
the dust was excessive, that during his inspections of the site Brooks had seen
thick, airborne dust “numerous times.” Tr. 206.

Given the
hazards presented by the dust and the other things in the air, Nichols
concluded that miners who did not wear safety glasses subjected their eyes to
injury from foreign objects. Tr. 204. As for himself, Nichols testified that he
“wouldn’t think of working around a place like that without safety glasses.”
Tr. 206. Brooks stated that earlier he had seen miners who were not wearing
eye protection at the site and that this bolstered his belief that Nichols was
telling the truth. Id. He also noted that he had seen Gibson at the site
without eye protection. Tr. 209.

In
Brooks’ opinion, the lack of eye protection was likely to lead to a disabling
eye injury. Tr. 207. Brooks also found that the failure to wear eye protection
was “fairly obvious” and that the company was moderately negligent in allowing
the condition to exist. Id. In his contemporaneous notes, Brooks wrote
that a miner said that he asked Gibson for safety glasses and that Gibson did
not respond. Tr. 208, Gov’t Exh. 4 at 11.

THE
VIOLATION, ITS S&S NATURE, ITS GRAVITY,

AND
THE COMPANY’S NEGLIGENCE

The
court finds the violation existed as charged. It is true that the government’s
allegations are based solely upon what Brooks was told by Nichols – that two
miners who were working in and under the crusher were exposed to airborne dirt
and dust particles but did not wear safety glasses. Tr. 202, 203; Gov’t Exh. 13
at 3. However, in the court’s opinion, Brooks’ testimony of what he saw and
experienced at the mine fully corroborates what Nichols reported. Tr. 204, 206,

The court therefore finds that on March 12 two miners were working inside
and around the impactor/crusher, and that the eyes of both miners were subject
to injury from airborne dirt and dust fragments in that neither miner was
wearing safety glasses in violation of section 56.15004.

The
violation was both S&S and serious. The Mathies requirements have
been met. There was a violation. The failure to wear safety glasses while
working in an environment where the atmosphere contained airborne dirt and dust
particles created a discrete safety hazard, that is the danger of an eye injury
or injures from the particles getting into the miners’ eye or eyes. Given the
prevalence of the airborne particles, especially the dust (see Tr. 204,
205, 206), it was reasonably likely an eye injury or injuries would occur. Further,
a scratched cornea or worse can cause lost time at work. Such injuries are
therefore reasonably serious, and the violation itself was serious.

The
court also agrees with Brooks that the violation was the result of the
company’s moderate negligence. The fact that the miners were not wearing eye
protection was obvious. The lack of compliance by the miners should have been
noted and corrected. It is fair to state that the company did not meet the
standard of care required by the circumstances.

CITATION
NO. DATE 30 C.F.R. §

8566012 3/20/2012 56.15002

The
citation states:

A
violation occurred on 3/12/2012. At least one miner

was
reported to be working around and on the crusher/

screen
plant where the hazard of flying or falling rock

was
apparent, without having a hard hat on. The

miner
was observed standing on the elevated service

deck
next to a screen and adjacent to the rolls crusher.

He
was wearing a soft ball-cap type hat. He was also

walking
and working around other plant locations

where
a similar hazard existed. Were a miner to be

struck
on the head when not wearing a hard-hat a

serious
injury could result.

Gov’t
Exh. 14.18

Brooks
testified that he issued the citation because Nichols told him that he,
Nichols, and his co-worker, Dunsing, were working on a platform adjacent to the
screen deck of the crusher and that Dunsing was not wearing a hard hat. Tr.
211-212. Brooks understood from Nichols that rather than a hard hat, Dunsing
was wearing a soft baseball-type cap. Tr. 215. He also understood that Dunsing
worked without a hard hat for “several hours.”Id.

By
virtue of being adjacent to the screen deck, Brooks believed that Dunsing was
in danger of being hit in the head by fly rock. Tr. 213. Brooks testified that
the rock would have come out of the crusher or would have been “kicked out” by
the crusher’s rollers. Tr. 214. He further observed that when Dunsing climbed
off the platform, he would have been even more exposed to dangerous fly rock
than he was when standing on the platform. Tr. 214.

Because
of the size of some of the fly rock (up to three inches in diameter. Tr. 116),
Brooks found that it was reasonably likely Dunsing would have been killed if he
were hit on the head. Tr. 215.; Gov’t Exh. 14. He testified that it was “fairly
obvious” Dunsing was working without a hard hat, and he found that the company
was moderately negligent. Tr. 216.

THE
VIOLATON

The
court finds that the Secretary failed to prove the violation. Obviously, Brooks
did not see Nichols and/or Dunsing working without a hard hat on March 12. Rather,
the allegation of a violation is based solely upon what Nichols told Brooks
happened on March 12. Nichols’ motives in reporting the alleged violations were
not altruistic, to say the least. Nichols had been fired, and he was angry at
his former employer. Moreover, Nichols did not appear to testify, but rather,
and at the Secretary’s request, offered testimony over the telephone, an
arrangement that made it difficult to judge his credibility. The court
therefore concludes that allegations based solely on events related by Nichols
require at least some corroboration, and unlike other alleged violations based
on Nichols’ rendition of events, the Secretary in this instance offered no
reliable corroborating evidence.

The
Secretary tried but failed to provide such evidence. Brooks testified that he
thought he remembered that during his inspection, he saw Dunsing working
without a hard hat. However, Gibson then reminded Brooks that Dunsing was fired
one week before Brooks arrived at the mine. Tr. 221. Upon being reminded,
Brooks stated that he “guessed” he had not seen Dunsing working without a hard hat.
Tr. 221.

Brooks
also testified that when he spoke with Dunsing on the telephone, Dunsing told
Brooks he did not want to “cooperate” with Brooks. Tr. 222. Dunsing said that
Brooks was being “used by an employee who got fired because he didn’t know how
to do his job correctly.” Tr. 223. Whether or not the statement is true,
Dunsing’s response highlights why it was necessary for the Secretary to
corroborate Nichols’ allegations.

CITATION
NO. DATE 30 C.F.R. §

8566017 3/21/2012 56.14107(a)

The
citation states:

On
the Pioneer 40x48 portable rolls/screen plant,

[t]he
tail-pulley for the conveyor was not guarded

on
the west side. Miners work in the area when

the
plant is being run, however the pulley is

partially
guarded by its position behind the

frame
and no miners work close by. Were a

miner
to contact the moving parts through

the
triangular 20-inch by 24-inch opening a

serious
injury could result.

Gov’t
Exh. 16.

Brooks
testified that he issued the citation because the company failed to guard a
moving pulley at the front of the mine’s rolls crusher. Tr. 228; see Gov’t
Exh. 16 at 4. Brooks explained that nothing was in place to prevent a miner
from contacting the moving part.19 Tr. 228. Brooks feared that a miner
could inadvertently touch the pulley, become entangled in it, and be
permanently disabled (“[A]t the least it would probably tear your arm off.” Tr.
230) or be killed. Tr. 229, 230. However, he also believed that an injury or a
fatality was “unlikely,” because, as he testified, “nobody generally works
around” the area. Tr. 230. The only real exposure to the hazard came when the
pulley’s bearings had to be greased (Id.), and while there was some
evidence that miners greased the pulley when the crusher was running, Brooks
noted that Nichols did not report that miners had to continuously grease it.20
Tr. 230-232. In addition to inadvertently extending a hand into the pulley’s
pinch point, it was possible, according to Brooks, for a miner to trip on the
rocks at the base of the crusher and fall into the pinch point. Tr. 231.

Brooks
found that the lack of a guard was due to the company’s moderate negligence.
Gov’t Exh. 16; Tr. 233. The unguarded area was visually obvious. Tr. 233. He
also speculated that holes in the frame of the crusher below the unguarded area
were an indication that a guard had once been affixed to the frame. Id. On
cross examination, Gibson asked Brooks why an MSHA inspector who was at the
mine the previous week did not cite Ronald for the violation. Brooks replied,
“I don’t know, you’ll have to ask him.” Tr. 234; see also Tr. 239.

THE
VIOLATION, ITS GRAVITY,

AND THE COMPANY’S NEGLIGENCE

The
court finds that the violation existed as charged. The cited pulley was a
moving machine part. The pulley could have been contacted rather easily in
that, as Brooks testified, there was nothing to block access to it. Tr. 228; see
Gov’t Exh. 16 at 4 (area within hand drawn blue box). Moreover, the
evidence establishes that miners at least occasionally had to work in the
vicinity of the opening and grease the pulley. Tr. 230-232. While the remote
fitting meant that a miner greasing the pulley was unlikely to contact the
moving pulley while greasing it, the miner could, as Brooks feared, trip or
slip on rocks at the base of the crusher and fall forward toward the pulley in
such a way that the miner’s hand, arm, and/or clothing would have been caught.
Tr. 231. The pulley should have been guarded.

Brooks
thought that the unguarded pulley was unlikely to cause a disabling injury
(Gov’t Exh. 16), and the court agrees. The very limited exposure of miners to
the hazard supports Brooks’ opinion. Because of the limited exposure, the court
finds that this was not a serious violation.

The
court further finds that the company’s negligence in allowing the violation was
low. Brooks noted that the lack of a guard was visually obvious. Tr. 333. However,
the remote grease fitting to some extent disguised the fact that a potential
hazard lurked beyond the fitting, which may be why an MSHA inspector who
visited the mine prior to Brooks may not have issued a citation for the lack of
a guard.21 Tr. 234, 239. Taken in its
totality, the evidence suggests that the violative condition was easy to miss.

CITATION
NO. DATE 30 C.F.R. §

8566018 3/21/2012 56.14107(a)

The citation states:

On
the Pioneer 40 x 48 portable rolls/screen plant,

the
drive belts and sheaves on the east side were

not
adequately guarded. While the front and

side
was substantially guarded, a miner could

easily
reach behind the guard and contact the

moving
parts through the 16-inch by 16-inch

open
area. Miners work around the plant but

not
close to the hazard. Were a person to

come
in contact with the moving parts a

serious
injury could result.

Gov’t
Exh. 17.

Brooks
testified that although there was a guard for the moving parts on the crusher’s
drive motor, the guard was not high enough to prevent someone from reaching
over it and ensnaring his or her arm in the turning shims and v-belts. Tr. 241;
Gov’t Exh 17 at 4 (area circled in blue); Tr. 244; Gov’t Exh. 14 at 4 (upper
area circled in red). As stated on the citation, the unguarded area measured
approximately 16 inches by 16 inches. Id. According to Brooks, a person
could slip or trip and fall into the moving parts. Or, a person could
accidentally reach over the insufficient guard and not be aware moving parts
were located in the area into which he or she reached. Tr. 242.

However,
Brooks also agreed that there was limited access to the area because miners
only occasionally worked in the vicinity of the drive belts and sheaves on the
east side of the crusher. When they did, they were usually doing maintenance or,
cleanup work, greasing the shaft bearing, or checking the belts.22
Tr. 242, 245. If such an accident occurred, Brooks thought that the
likely result would be a permanently disabling injury, in that the miner would
lose a finger, a hand, or an arm. Tr. 243, 246. As Brooks recalled, the
unguarded area was “less than shoulder height.” Tr. 248.

In
Brooks’ opinion, the company should have known about the cited condition. Tr.
250.

Moreover,
Nelson testified that during his compliance assistance visit, he advised Gibson
that drive belts and sheaves needed to be guarded, and his testimony was not
refuted. Tr. 267.

THE
VIOLATION, ITS GRAVITY,

AND THE COMPANY’S NEGLIGENCE

The
court finds that the violation existed as charged. The testimony of Brooks
establishes that the cited pulley sheave and the belts on the east side of the
crusher were not adequately guarded. Tr. 241. No evidence was offered
countering Brooks’ testimony to this effect, and the court finds that the
existing guard did not prevent a miner from inadvertently reaching an arm or
hand over the guard and into the moving pulley and belts. The court notes that
an opening approximately 16 inches square is more than enough space for a miner
to insert his or her hand or arm. See Gov’t Exh. 16 at 4. Moreover, the
opening was not so high as to prevent contact by location. Tr. 248. Further,
the testimony establishes that miners occasionally accessed the cited area when
they were engaged in maintenance, checking the belts, or greasing the bearings.
Tr. 242, 245. These miners were subjected to the hazard of being caught in the
moving parts.

However,
the court also concludes that exposure was so limited, the violation was not
serious. The chance of an injury causing accident actually occurring was
exceedingly low because miners only occasionally were in the area and because
Brooks admitted that he was not sure that one of the activities he feared would
subject miners to contact with the moving parts – greasing the bearings of the
pulley – was more than minimally hazardous. See n. 23 infra.

Finally,
the court agrees with Brooks that the violation was due to Ronald’s moderate negligence.
Gov’t Exh. 17; Tr. 250 The lack of a guard was visually obvious. Moreover,
because of Nelson’s warning, the company was on notice a guard was required.
Tr. 267. Had Ronald’s management exercised the care required by the
circumstances, a guard would have been installed.

CITATION
NO. DATE 30 C.F.R. §

8566019 3/21/2012 50.30(a)

The
citation states:

The
operator failed to submit the required 7000-2

Quarterly
Report form within 15 days following

the
end of the quarter. The 3rd quarter of 2011

ended
on September 30 and the Quarterly

Report
due on October 15th was not submitted

until
October 24, 2011. This is a paperwork

violation
only.

Gov’t
Exh. 18.

On
March 21, 2012, Brooks cited Ronald for a violation of 30 C.F.R. § 50.30(a), a
standard requiring each operator of a mine in which a miner works to submit a
quarterly employment report.23 The citation states that the company
failed to submit the required form within 15 calendar days of the end of the
third quarter of 2011. Gov’t Exh. 18. The citation goes on to state that it is
“a paperwork violation only.” Id. When issuing the citation, Brooks
found that there was no likelihood the failure to submit the form would result
in an injury. Id. He also found that the failure was the result of the
company’s low negligence. Id.

Gibson
stated that he “agreed” with the citation, but he noted that although the
information was reported late, it was only “nine days late.” Tr. 251.

THE
VIOLATION, ITS GRAVITY,

AND THE COMPANY’S NEGLIGENCE

After
Gibson stated that he agreed with the citation and offered no testimony or
other evidence to counter the inspector’s gravity and negligence findings, the
court found on the record that the violation occurred as charged and that the
gravity and negligence of the operator were as described by Brooks. Tr.,
251-252. The court affirms these findings.

OTHER
CIVIL PENALTY CRITERIA

The
court has found violations and it must assess civil penalties taking into
account the statutory civil penalty criteria. 30 U.S.C. § 820(i).

HISTORY
OF PREVIOUS VIOLATIONS

The
Secretary introduced an assessed violation history report that shows in the two
years prior to March 16, 2012, two violations were assessed and paid by Ronald.
Tr. 120; Gov’t Exh. 1. This is a very small history of previous violations.

SIZE OF THE BUSINESS

Although
the parties did not reach a stipulation with regard to the size of Ronald’s
business, and although the company offered no evidence about its size, the
court notes that when proposing penalties, the Secretary assigned no penalty
points to Ronald due to its size. Petition for Assessment of Civil Penalty,
Exh. A. Therefore, based on Exhibit A, the court concludes that Ronald is very
small.

ABILITY
TO CONTINUE IN BUSINESS

There
is confusion in the record regarding this criterion. When asked by the court
whether the company agreed that the total of the penalties proposed by the
Secretary ($1,553.00) would not impact the company’s ability to continue in
business, Gibson answered that “it would impact it, yes,” and the court
responded, “I’ll accept that . . . as a stipulation.” Tr. 17. However, the
Secretary never agreed that the proposed penalties would have an impact on the
business, and the court wonders if there is a mistake in the transcript and
that Gibson actually stated, “it would not impact it,” an answer that seems
possible given the court’s response.

In
any event, as the court explained at the beginning of the hearing, the company
bears the burden of proof on the issue, and Ronald presented no evidence. Tr.

Therefore, the court finds that total penalties of up to $1,553.00 will not
affect the company’s ability to continue in business.

GOOD
FAITH ABATEMENT

At
the hearing, counsel for the Secretary agreed that Ronald had exhibited good
faith in abating the alleged violations, and the court so finds.

ASSESSMENT OF PENALTIES