Secretary of Labor, MSHA v. Taft Production Company

Plain-English summary

MSHA cited four powder and material accumulations at Taft Production Company's California cat-litter mine under the housekeeping standard for workplaces and passageways. Judge James G. Gilbert rejected Taft's arguments that the milling areas fell outside Mine Act jurisdiction, that the areas were not workplaces or passageways, that the standard lacked fair notice, and that the citations were duplicative. He found that each location presented a separate housekeeping duty and that miners worked in or traveled through the accumulated material. Two violations were significant and substantial because miners were actively exposed to slip, trip, and fall hazards during maintenance work. All four citations were affirmed as issued, with total penalties of $3,321.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.20003(a)
• Outcome: Four housekeeping citations were affirmed as issued, including two S&S findings, and $3,321 in penalties was assessed.
• Key point: Separate material accumulations in distinct work or travel areas may support separate housekeeping citations, even when they arise under the same standard during one inspection.

Full text (FMSHRC public release)

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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

February 26, 2014

SECRETARY OF LABOR,

MINE SAFETY AND
HEALTH    

ADMINISTRATION (MSHA),

Petitioner,

v.

TAFT
PRODUCTION company,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. WEST 2012-1484-M

A.C. No. 04-02964-299562

Mine: Taft Production Company & Mines

DECISION

Appearances:   Pamela F. Mucklow, U.S.
Department of Labor, Office of the Solicitor, Denver,

Colorado, on
behalf of the Secretary of Labor

Larry R. Evans,
Oil Dri Corporation of America, Ochlocknee, Georgia, on behalf

of Taft Production
Company

Before:
          Judge James G.
Gilbert

This case is before me upon a
Petition for Assessment of a Civil Penalty filed by the Secretary of Labor
pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815(d). The petition alleges that Taft Production Company (“Taft”)
is liable for four violations of the Secretary’s safety and health standards
for surface metal and nonmetal mines, and proposes the imposition of penalties
in the total amount of $3,321.00. A hearing was held in Los Angeles, California
and both parties filed post hearing briefs.[1]

I.                  
Stipulations of Fact

1.      Taft is engaged
in surface metal/nonmetal mining at the Taft Production Company Mine in Kern
County, California.

2.      Taft’s mining
operations affect interstate commerce.

3.      Taft is an
operator as defined in section 3(d) of the Act.

4.      Operations at the
Taft Production Company mine are subject to the jurisdiction of the Mine Act.

5.      The
Administrative Law Judge has jurisdiction in this matter pursuant to section
105 of the Act.

6.      The individual
whose signature appears in block 22 of the citations at issue in this
proceeding was acting in his official capacity as authorized representative of
the Secretary of Labor when the citations were issued.

7.      True copies of
the citations at issue in this proceeding were served on Taft as required by
the Act.

8.      The total
proposed penalties for the citations in this proceeding will not affect Taft’s
ability to continue in business.

9.      The Secretary
stipulates that Taft exercised good faith in terminating the citations in a
timely manner.

Transcript
(Tr.) 6-7.

II.               
Discussion

Taft Production Company Mine is
located in Kern County, California and is a producer of cat litter. Tr. 16;
Stipulation (Stip.) No. 1. MSHA Inspector David Cheney conducted a regular
inspection of the mine from July 30, 2012, through August 2, 2012.[2] Tr. 16-17. He was accompanied by Nick
Kingston, the process manager at Taft, during the inspection.[3] Tr. 34. Cheney wrote four citations over
the course of his inspection.

1.      Citation No.
8689617

Citation No. 8689617 was issued by Cheney on July 31, 2012, at 4:40 a.m.,
pursuant to section 104(a) of the Act. Government’s Exhibit No. 1 (Ex. G-1). It
alleges a violation of 30 C.F.R. § 56.20003(a) which states that, “[a]t all
mining operations – (a) Workplaces, passageways, storerooms, and service rooms
shall be kept clean and orderly.” The violation was described in the “Condition
or Practice” section as follows:

At the top of
the 102 silo was a spillage of material in front of the cat walked [sic]. This
spillage consists of ½ inch rocks. This spillage was approximately 3 inches
deep. Miners were exposed to a slip, trip, fall hazard. Miners are in this area
once a month.

Standard
56.20003(a) was cited 3 times in two years at mine 04-02964 (3 to the operator,
0 to a contractor).

Ex. G-1.

Cheney determined that the violation was unlikely to result in a lost workdays
or restricted duty injury, that one person was affected, and that the level of
negligence was moderate. A civil penalty in the amount of $176.00 was assessed
for the violation.

A.    Relevant Testimony

(1)   Inspector David Cheney

Cheney testified that there was spillage on top of the 102 silo in front of the
walkway. Tr. 19; Ex. G-2. A picture of the area taken by Cheney depicts soft
powder with small granules on a flat surface, the roof of the silo, which leads
up to a grated walkway.[4]
Tr. 20, 30, 136. He estimated that the powder was spread across an area of 10
feet by 10 feet and approximately 2 to 3 inches deep. Tr. 20, 28, 29, 138. A
photograph taken after termination of the citation depicts a smooth, clean silo
surface devoid of powder and granules. Ex. G-3.

Cheney considered the conditions to be a violation of the cited standard
because miners walked through the area, making it a work area or passageway,
and it was not clean and orderly. Tr. 33. He was unsure whether there was a
dust collector at the top of the silo or other material such as screws, but
what he did see indicated that miners would need to access the area for
maintenance purposes. Tr. 33-34.

Cheney determined that the
violation was unlikely to result in an injury to one miner because a miner
would only visit the area rarely to do maintenance. Tr. 40, 48; Ex. G-1. He
stated that Kingston estimated that maintenance was done once a month. Tr. 41.
He also asserted that the cited standard was intended to prevent slip, trip,
and fall hazards that could lead to lost workdays or restricted duty injuries,
such as a twisted ankle, bumps, bruises, or cuts.[5] Tr. 36, 38, 45-46. These are injuries
that have reportedly occurred from slip, trip, and fall hazards in other mines
and happen “all the time.” Tr. 46-47.

Cheney marked the level of
negligence as moderate because the operator either should have known or did
know of the violative conditions but there were mitigating circumstances. Ex.
G-1; Tr. 48. The Secretary argued that while Kingston stated that he was not in
and has not held a management position, he was nonetheless an agent of Taft.
Tr. 193, 269-70.

(2)   Nick Kingston

Kingston maintained that the
spillage on top of the 102 silo was between a ½ inch and 2 inches thick. Tr.

194. He was not very familiar with all the uses of the silo, but stated that it
     was part of section 1 of the plant and that the spillage usually happens from
     an overload of elevator 101. Tr. 228, 250. The elevator is loaded with product
     at the base, where it is transported upward, and automatically fed down the
     pipes that lead to the silo. Tr. 252.

Access to the top of the 102
silo is gained by climbing up the 101 silo and walking across a catwalk. Tr.
248; Ex. G-4, 5. Kingston explained three reasons why a miner would access the
top of the 102 silo. He testified that the one miner who is on-shift would not
go to the top, except to take measurements of the silo tank once a month. Tr.
194-95, 229. Kingston also stated that maintenance may access the top of the
silo to grease if section 1 was running, noting that this could happen as often
as once a month or as little as every 6 months. Tr. 195-96, 242. The last
reason is to change the gates. Tr. 252-53. Gates are changed when Taft wants to
bypass the silo and divert the product to a different pipe that leads directly
to a conveyor. Tr. 253. In order to change the gates, a miner must climb the
stairs located at the top of the 102 silo that lead to the top of the elevator.
Tr. 247-48.

Because the top of the 102 silo
is seldom accessed, Kingston asserted that he was not aware of the spill until
traveling there with Cheney and that the spill had not been reported by any
miner. Tr. 194, 227.

B.     Respondent’s Legal
Arguments

Respondent argues that it did not violate the above standard because the area
where the 102 silo was located should not be considered a mining operation, the
area was not a passageway or a walkway, there was no fair notice of the meaning
of clean and orderly, and the citations were duplicative.[6]

(1)   Jurisdiction

Respondent argues that the cited
areas were located in a milling operation, not a mining operation as the safety
standard requires. Resp. Br. at 11-12. It also asserts that there is a marked
difference between a mine operation and a mining operation. Id. at 12.
However, Respondent stipulated that it is engaged in surface metal/nonmetal
mining at the Taft Production Company Mine, that its “mining operations” affect
interstate commerce, and that its operations are subject to the jurisdiction of
the Mine Act. Stips. 1, 2, 4; Tr. 6. In addition, section 3(h)(1) of the Act states
that a coal or other mine means “. . . structures, facilities, equipment,
machines, tools, or other property… or used in, or to be used in, the milling
of such minerals….” 30 U.S.C. § 3(h)(1).

Respondent stipulated to the fact
that it is a mining operation engaged in surface metal/nonmetal mining. Its
operations also fall under the purview of the Act as defined in section
3(h)(1). Accordingly, Respondent’s argument that the Secretary lacked
jurisdiction to issue the citation is rejected.

(2)   Definition of Workplace and
Passageway

Respondent argues that the cited
areas were not workplaces or passageways. Resp. Br. at 3-5. When defining
terms, the Commission has first looked at the language of the definition. National
Cement Co., 27 FMSHRC 721, 726 (Nov. 2005). Workplace and passageway are
not defined in the Act or in the definitions relating to section 56. In this
case, the Commission then looks to the commonly understood definition of the
term. Id. at 726; Jim Walter Res., Inc., 28 FMSHRC 983, 987 (Dec.
2006); Drillex, Inc., 16 FMSHRC 2391, 2395 (Dec. 1994) (stating that
“[i]n general, absent express definitions, statutory terms should be defined
according to their commonly understood definitions.”). However, the ordinary
meaning of the words used in a statute cannot be applied to produce absurd
results. Jim Walter Res., Inc., 28 FMSHRC at 987; National Cement,
27 FMSHRC at 728.

Merriam Webster’s Online
Dictionary defines workplace as “a place where work is done” and defines
passageway as “a way that allows passage.” Merriam Webster’s Online
Dictionary, http://www.merriam-webster.com/dictionary/
(last accessed Jan. 26, 2014). Passage is defined as “way of exit or entrance:
a road, path, channel, or course by which something passes.” Id. These
definitions do not produce absurd results if applied in the context of section
56.20003(a).

In particular to Citation No.
8689617, Respondent argues that the top of the 102 silo is not a workplace or
passageway because the clay was behind a pipe and underneath a stairway. Resp.
Br. at 3. However, Government Exhibits 2 and 3 clearly show that the spillage
was not directly behind a pipe, but spread out and up against the catwalk.
Miners would access the 102 silo to take measurements of the tank and to grease
if the section was running. Tr. 194-96, 229, 242.

In addition, in order to change
the gates, a miner has to walk across the top of the 102 silo to reach the
ladder that leads to the top of the elevator where they are located. Tr.
247-48; Ex. G-4. Not only was work done on the top of the 102 silo, but miners
were required to walk across it as a means to reach the top of the elevator.
Accordingly, I find that the 102 silo was both a workplace and a passageway.[7]

(3)   Fair Notice

Respondent argues that MSHA
failed to provide fair notice of its interpretation of the standard’s requirements,
particularly “clean and orderly.” Resp. Br. at 2. It has stated that the
Secretary’s interpretation is essentially that “[e]very spot in the entire mine
must always be spotless or you could be cited for each spot” and that it is
“absurdly broad.”

“[D]ue process considerations
preclude the adoption of an agency’s interpretation which ‘fails to give fair
warning of the conduct it prohibits or requires.’” LaFarge North America,
35 FMSHRC _, slip op. at 4, No. CENT 2010-4-M (Dec. 11, 2013); Gates &
Fox Co. v. OSHRC, 790 F.2d 154, 156 (D.C. Cir. 1986). “The Commission’s
test for notice under the Mine Act is ‘whether a reasonably prudent person
familiar with the mining industry and the protective purposes of the standard
would have recognized the specific prohibition or requirement of the
standard.’” Wolf Run Mining Co., 32 FMSHRC 1669, 1682 (Dec. 2010). A
number of factors are relevant to this determination, including “the text of a
regulation, its placement in the overall regulatory scheme, its regulatory
history, the consistency of the agency’s enforcement, and whether MSHA has
published notices informing the regulated community with ascertainable
certainty of its interpretation of the standard in question.” Id.

The text of the regulation is clear: workplaces and passageways shall be kept
clean and orderly. Respondent conceded that the language of the standard is not
ambiguous. Resp. Br. at 1. The regulation is in place to prevent hazards, such
as slipping, tripping, and falling that could lead to lost workdays or
restricted duty injuries as Cheney stated above. There is no basis for
Respondent’s assertion that the Secretary’s interpretation is that the areas
must be spotless. A reasonably prudent person familiar with the mining industry
would recognize that the accumulation of powder from several inches to up to 24
inches where miners work or walk by is prohibited under the standard. Ex. G-6,
11, 16. I find that Respondent had notice of the standard’s requirements.

(4)   Duplication

Respondent asserts that three of the four citations should be vacated because
there should only be one citation for housekeeping per mine. R. Resp. Br. at 3.
It cites MSHA’s Program Policy Manual that states “where there are
multiple violations of the same standard which are observed in the course of an
inspection and which are all related to the same piece of equipment or to the
same area of the mine, such multiple violations should be treated as one
violation and one citation should be issued.” I MSHA, U.S. Dep’t of Labor, Program
Policy Manual 21 (2003).

“The Commission has held that citations are not duplicative so long as the
standards involved impose separate and distinct duties upon an operator. Western
Fuels-Utah, Inc., 19 FMSHRC 994, 1003-05 (June 1997); Cyprus Tonopah
Mining Corp., 15 FMSHRC 367, 378 (Mar. 1993).” Cumberland Coal Res., LP,
28 FMSHRC 545, 553 (Aug. 2006) aff’d 515 F.3d 247 (3d Cir. 2008).
Additionally, in Western Fuels, the Commission focused on whether MSHA
cited the operator on the basis of more than one specific act or omission. 19
FMSHRC at 1004 n.12.

In this case, the operator was
cited for housekeeping violations because it failed to clean up accumulations
of powder in four distinct areas of the mine that constituted a workplace
and/or passageway: the top of the 102 silo; the base of elevator 101;
underneath auger 6; and, the top of the fines tank. These four separate
failures imposed four distinct duties on the operator to clean up the powder in
each of these four locations. I find that the citations issued were not
duplicative.

C.    Findings and Conclusions

Taft failed to keep the top of the 102 silo, a workplace and passageway, clean
and orderly by allowing material to accumulate up to 2 to 3 inches across a 10
foot by 10 foot area. I credit Cheney’s testimony regarding the slipperiness of
the powder and the slip, trip, and fall hazard that it created. This hazard
could have reasonably caused twisted ankles, bruises, and cuts, resulting in
lost workdays or restricted duty. In addition, I agree with Cheney’s
determination that one miner would be unlikely to suffer an injury because one
miner is usually on-shift in the area and would access the top of the 102 silo
once a month. Accordingly, I find that Taft violated section 56.20003(a).

As to the level of negligence, the Secretary attempted to establish at hearing
that Kingston was an agent of Taft and his negligence was imputable to
Respondent. Tr. 268. Pursuant to section 3(e) under the Act, an agent is
defined as “any person charged with responsibility for the operation of all or
part of a coal or other mine or the supervision of the miners in a coal or
other mine.” 30 U.S.C. § 802(e). The Commission has developed a multi-factor
test to determine if a miner is also an agent which includes looking at the
definition of agent under the Act, common law principles of agency, and
distinctions between supervisors and employees under the National Labor
Relations Act. Martin Marietta Aggregates, 22 FMSHRC 633, 637, 638 (May
2000). The Commission focuses on the miner’s job functions, not title when
making its determination. Id. at 637.

Kingston
was an hourly employee who supervised mill 1, mill 2, and had four people on
his team. Tr. 265, 282. He provided his team members with tasks to complete and
he was their immediate supervisor. Tr. 266-67. If one of Kingston’s team
members was leaving for the day, the member would notify Kingston. Tr. 268.
However, Kingston was not involved in the process of hiring or selecting his
team, he took issues with team members to his boss, and he had never
disciplined one of his members. Tr. 266-68.

These
facts closely resemble a case previously decided by the Commission, affirming
the judge’s determination that the miner was not an agent where his job
functions did not include hiring and firing employees, being given instructions
for disciplining employees, and responsibility for an employee’s performance
and duties. REB Enterprises, 20 FMSHRC 203, 211-212 (May 1998). No
evidence was presented that Kingston was responsible for the safety of his team
or for ensuring compliance with mandatory safety standards.[8] While Kingston did have the authority to
task members of his team with assignments and supervises part of the plant, the
aspects that are not part of his job weigh more heavily toward a rank and file
miner. Therefore, I find that Kingston was not an agent of Taft.

Moderate negligence is appropriate
when “[t]he operator knew or should have known of the condition or practice,
but there are mitigating circumstances.” 30 C.F.R. § 100.3. Low negligence
requires considerable mitigating circumstances. Id. Taft should have
known about the unsafe conditions. I find the fact that the top of the 102 silo
was accessed as little as once a month to be a mitigating factor. Therefore, I
find that Cheney properly determined the level of negligence to be moderate.

2.      Citation No.
8689619

Citation No. 8689619 was issued by Cheney on July 31, 2012, at 5:00 a.m.,
pursuant to section 104(a) of the Act. It alleges a violation of 30 C.F.R. §
56.20003(a). The violation was described in the “Condition or Practice” section
as follows:

Over at the
bottom of the elevator 101 at Mill 2 was a spillage of material. This spillage
was approximately 6 inches deep. This was located at the west side of the
plant. Miners are in the area only as needed.

Standard
56.20003(a) was cited 4 times in two years at mine 04-02964 (4 to the operator,
0 to a contractor).

Ex. G-6.

Cheney determined that the violation was unlikely to result in a lost workdays
or restricted duty injury, that one person was affected, and that the level of
negligence was moderate. A civil penalty in the amount of $176.00 was assessed
for the violation.

A.    Relevant Testimony

(1)   Inspector David Cheney

Cheney testified that there was spillage of material at the bottom of elevator

101. Tr. 52. A photograph depicts the spillage, which looks like powder piled
     up along a white structure representing the outside of the elevator. Ex. G-7;
     Tr. 54-55. The material was up to 6 inches deep in an area approximately 12
     feet by 12 feet. Tr. 55, 60, 64. In the immediate vicinity of the material were
     a conveyor belt, an elevator, and a ladder. Tr. 65. Cheney asserted that the
     area was a workplace because a miner would have had to at least do maintenance
     on the elevator and conveyor belt. Tr. 65.

Cheney determined that the
likelihood of injury was unlikely because he was told by Kingston that miners
only go to the area once a month to grease bearings on the conveyor belt. Tr.
70, 74, 78; Ex. G-23. He posited that the same hazards as the previous
citation, slip, trip, and fall, were present and that the same injuries could
have occurred, resulting in lost workdays or restricted duty. Tr. 78.

Cheney marked the level of
negligence as moderate because the cited standard had been cited four times in
the previous two years and Respondent should have known about the spillage
through conducting a workplace examination. Tr. 79, 81; Ex. G-6. He also stated
that when Kingston was asked why the spill was not cleaned up, Kingston
remarked that “he was shorthanded and that it just happened.” Tr. 66-67, 82.

(2)   Nick Kingston

Kingston maintained that the
spillage came from the elevator overloading, and that when the top of the 102
silo was cleaned off, the material fell in front of elevator 101, resulting in
the citation. Tr. 200, 202, 273. He explained that to clean up the top of the
102 silo, the material was pushed off the side with a broom and barricades were
set up at the ground level. Tr. 197. Kingston asserted that it was not possible
to bring cleaning equipment to the top of the silo, so it is pushed off the
side and picked up at the ground level with a scraper. Tr. 261. However,
Kingston agreed that the amount of material at the base of elevator 101 looked
like more material than what was pictured at the top of the 102 silo. Tr. 264;
Ex. G-2, 7.

Kingston testified that the
material consisted of a “fine-grade powder and a little bit of our course
product.” Tr. 204. He did not think that injury would have resulted from
walking through the spillage because it was not deep or on an incline. Tr.
204-05. However, he did agree that a miner could trip if he did not know the
area or if there was a ledge of powder. Tr. 206.

Kingston stated that he walked
through the area once a month to check safety equipment such as fire
extinguishers. Tr. 206, 275. A miner would not be in the area to operate the
conveyor belt because that was done from a block house located 50 to 60 feet
from the 102 silo. Tr. 202-04. He posited that the tail pulley and conveyor
belt would need to be checked but was unsure how often. Tr. 278. Kingston also
mentioned that a miner would do maintenance on the bag house once every 3
months and would need to use the ladder at the base of the elevator. Tr. 276.

B.     Findings and
Conclusions

I credit Kingston’s testimony
that he walked through the area where the spillage was located once a month to
check safety equipment, that at least one miner would perform maintenance on the
conveyor belt, and that at least one miner would use the ladder on the side of
the elevator to perform maintenance on the bag house once every three months.
Based on the above definitions, the area where the spillage was located was
used both as a workplace and passageway. Taft failed to keep the area around
elevator 101 clean by allowing a build-up of powder to occur that was up to 6
inches deep over an area of 12 feet by 12 feet.[9] I find that Respondent violated section
56.20003(a).

As stated in the prior citation,
the slipperiness of the powder created a slip, trip, and fall hazard. Even
though the surface was flat, this hazard could have reasonably caused twisted
ankles, bruises, and cuts, resulting in lost workdays or restricted duty.
Although Kingston maintained that a miner would not be injured due to his
familiarity with the area, the Act does not distinguish between a miner who
knows the area and one that does not. In addition, I agree with Cheney’s determination
that injury is unlikely because one miner would check safety equipment in the
area or grease bearings on the conveyor just once a month.

One miner only being in the area
of the spillage once a month would be considered a mitigating factor supporting
Cheney’s determination of moderate negligence. However, Kingston’s comment to
Cheney about how the spill “just happened” and that “he was shorthanded,”
indicates to me that Kingston was aware of the spill and no clean-up was
provided. Even if the accumulation included powder that was swept off the 102
silo, Kingston agreed that there was more powder present on the floor than what
would have been swept off.

Taft should have known about the
existing conditions. I do not consider being short-staffed a mitigating
circumstance. However, since the area is seldom accessed, the spill that
occurred prior to the sweeping of the 102 silo would likely not have been seen.
Therefore, I find that the level of negligence was properly marked as moderate.

3.      Citation No.
8689620

Citation No. 8689620 was issued
by Cheney on August 1, 2012, at 5:25 a.m., pursuant to section 104(a) of the
Act. It alleges a violation of 30 C.F.R. § 56.20003(a). The violation was
described in the “Condition or Practice” section as follows:

Over at Auger #6
they had a spillage of material. This spillage of material was approximately 24
inches deep. There were footprints all thought [sic] the spillage. Miners were
exposed to twisted ankles or a slip, trip, fall hazard. This was located on the
south side of the plant. Miners are in this area to do maintenance.

Standard
56.20003(a) was cited 5 times in two years at mine 04-02964 (5 to the operator,
0 to a contractor).

Ex. G-11.

Cheney determined that the violation was reasonably likely to result in lost
workdays or restricted duty, that it was significant and substantial (S&S),
that one person was affected, and that the level of negligence was moderate. A
civil penalty in the amount of $687.00 was assessed for the violation.

A.    Relevant Testimony

(1)   Inspector David Cheney

Cheney testified that there was
spillage located at auger 6. Tr. 85. A photograph depicts the auger and powder
spread out over the floor, some in a pile on the right side. Ex. G-12, 12-A,
13, 14; Tr. 87, 89.[10]
It does not capture the entire spill. Tr. 89. Cheney measured the powder at a
depth of 3 to 6 inches, with some of the piles reaching 24 inches deep. Tr. 97,
157, 158. Miners were conducting maintenance work in the area on a pipe that
had a hole. Tr. 103-04. In addition to fixing the pipe, Cheney posited that
other types of maintenance would be done in the area because he viewed screws,
ports, an electrical box, a chute, and stairs. Ex. G-15A; Tr. 105, 108-10.

(2)   Nick Kingston

Kingston testified that the
powder, fines from the mill, came from the relief valves of the auger 6. Tr.
209, 211. The valves were opened to relieve pressure when a blockage occurred,
usually two to three times a week. Tr. 209-10, 293. In order to reach the
valves, a miner would have to walk under the auger 6. Tr. 210. Kingston
estimated that the ports and omnilift were opened between July 29 and July 31.
Tr. 288, 293. He also stated that workplace exams were conducted in the area
where the spillage was located when it was running because trucks were loaded
near there. Tr. 290.

Respondent argues that the
citation should be vacated because maintenance was being done over the cited
area. R. Resp. Br. at 4. This is not a valid defense. Pursuant to section
110(a) of the Act, “[t]he operator of a coal or other mine in which a violation
occurs of a mandatory health or safety standard or who violates any other
provision of this Act, shall be assessed a civil penalty by the Secretary. . .
.” 30 U.S.C. § 820(a). “This provision has been held to impose liability for
violation of a standard against an operator without regard to fault.” Ames
Construction, Inc., 33 FMSHRC 1607, 1611 (July 2011); see also Allied
Products Co. v. FMSHRC, 666 F.2d 890, 893-94 (5th Cir. 1982); Sewell
Coal Co. v. FMSHRC, 686 F.2d 1066, 1071 (4th Cir. 1982).

The area underneath the auger 6
was a workplace and Taft failed to keep the area clean and orderly by allowing
piles of powder to accumulate up to 24 inches over a large area. Both witnesses
stated that maintenance was being conducted in the immediate area of the spill.
There were other objects in the area that would have required maintenance, and
a miner had to travel underneath the auger in order to reach the relief valves.
In addition, I credit Kingston’s testimony that workplace exams were conducted
in the area of the spill and that trucks were loaded there. Accordingly, I find
that Taft violated section 56.20003(a).

B.     Findings and
Conclusions

(1)   Significant & Substantial

The Commission has reviewed and
reaffirmed the familiar Mathies framework for determining whether a
violation is S&S in Cumberland Coal Resources, 33 FMSHRC 2357 (Oct.
2011):

The S&S
terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814(d),
and refers to more serious violations. A violation is S&S if, based on the
particular facts surrounding the violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness
of a reasonably serious nature. See Cement Div., Nat’l Gypsum Co., 3
FMSHRC 822, 825 (Apr. 1981). In Mathies, 6 FMSHRC 1, the Commission
further explained:

In order to
establish that a violation of a mandatory safety standard is significant and
substantial under National Gypsum, the Secretary of Labor must prove:
(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.

Id. at
3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d
133, 135 (7th Cir. 1999); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d
99, 103 (5th Cir. 1988) (approving Mathies criteria). An evaluation of
the reasonable likelihood of injury should be made assuming continued normal
mining operations. See U.S. Steel Mining Co., 6 FMSHRC 1824, 1836 (Aug.
1984).

The Commission recently discussed the third element of the Mathies test
in Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81
(Oct. 2010) (“PBS”) (affirming an S&S violation for using an
inaccurate mine map). The Commission held that the “test under the third
element is whether there is a reasonable likelihood that the hazard contributed
to by the violation, i.e., [in that case] the danger of breakthrough and
resulting inundation, will cause injury.” Id. at 1281. Importantly, we
clarified that the “Secretary need not prove a reasonable likelihood that the
violation itself will cause injury.” Id. The Commission also emphasized
the well-established precedent that “the absence of an injury-producing event
when a cited practice has occurred does not preclude a determination of
S&S.” Id. (citing Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec.
2005); and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June
1996)).

Cumberland Coal Res., 33
FMSHRC at 2363-65.

The fact of the violation has
been established. Cheney maintained that the spillage in the auger 6 area contributed
to a discrete hazard, a miner slipping, tripping and falling. Tr. 113. The violation being S&S turns on
whether the hazard was reasonably likely to result in an injury causing event
and whether it was reasonably likely that an injury would be of a reasonably
serious nature.

Cheney determined that injury
was reasonably likely because there were miners in and around the area for the
previous 2 days conducting maintenance activities and the area “had footprints
all through it.” Tr. 97, 103-04, 114, 117. Specifically, he was told by one of
the maintenance workers that they were preparing to go upstairs to fix a pipe
that had a hole. Tr. 104. While caution tape was present in the area because of
a crane being used to perform maintenance work the night before, the tape only
spanned one side, and more tape was added once the citation was issued. Tr.
100, 155. Like the above citations, Cheney believed that the spillage created a
slip, trip, and fall hazard that could have caused a twisted ankle, resulting
in lost workdays or restricted duty. Tr. 113.

Kingston did not think that
walking through the area would have been hazardous to a miner. Tr. 211. He
maintained that caution tape was hung by maintenance when fixing a blockage in
the auger, which usually took place above the floor area where the spillage was
located. Tr. 213. He stated that the tape’s function was to block anyone from
entering the area because miners were on ladders and sparks were flying from
repairing the pipe. Tr. 214, 285.

The powder came from the relief
valves of the auger, which Kingston testified were opened between July 29,
2012, and July 31, 2012. This means that the powder accumulations had been
present for at least one shift, possibly more. There were also footprints
throughout the spillage area, most likely those of the maintenance crew fixing
the pipe. This indicates that the caution tape originally placed on one side of
the area was insufficient to prevent miners from traveling through it. In
addition, Cheney testified that he slipped on similar looking powder located on
top of the 102 silo. Tr. 139. I find that the spillage contributed to a
discrete safety hazard, a miner slipping, tripping, and falling, which could
have resulted in twisted ankles, cuts, and bruises.

Based on these facts, I find
that it was reasonably likely that one miner would suffer reasonably serious
injuries that would result in lost workdays or restricted duty, and that Cheney
properly determined the violation to be S&S.

(2)   Negligence

Cheney marked the level of
negligence as moderate because he was told by Kingston that that the spill had
just happened. Tr. 114-15. Cheney did not believe him and asserted that the
spill had been present for “almost more than a shift.” Tr. 114-15. In addition,
caution tape was present in the area because of a crane doing maintenance work
the night before, not as the result of the spillage. Tr. 100. The tape,
however, only spanned one side, and more tape was added once the citation was
issued. Tr. 155.

Kingston would read the
workplace exam records every 2 to 3 days but looked at the records for each day
in between. Tr. 283. Section 5 on the exam record covered auger 6 which was
located in mill 1. Tr. 285; Ex. G-26. On July 31, 2012, section 5 had
housekeeping checked off as unsatisfactory and the comment reads “[a]ll taped
off.”[11]
Ex. G-26; Tr. 285. Kingston stated that the maintenance men would have cleaned
up after finishing the repair on the pipe. Tr. 290.

Since the valves were opened between July 29, 2012, and July 31, 2012, the
powder had been present for at least one shift. The spill was addressed in the
workplace exam record on July 31, 2012, and the caution tape, although
insufficient, would have at least alerted miners to the presence of the powder.
I find that Cheney properly determined the level of negligence to be moderate.

4.      Citation No.
8689621

Citation No. 8689621 was issued by Cheney on August 1, 2012, at 5:50 a.m.,
pursuant to section 104(a) of the Act. It alleges a violation of 30 C.F.R. §
56.20003(a). The violation was described in the “Condition or Practice” section
as follows:

At the top of
the fines tank was approximately six inches of fines over the toe boards. There
were maintenance welders working in this area to fixed [sic] a leak the day
before. Footprints were all throughout this area. Miners were exposed to a
slip, trip, fall hazard. This tank is approximately 60 foot [sic] off the
ground.

Standard
56.20003(a) was cited 6 times in two years at mine 04-02964 (6 to the operator,
0 to a contractor).

Ex. G-16.

Cheney determined that the
violation was reasonably likely to result in lost workdays or restricted duty,
that it was S&S, that one person was affected, and that the level of
negligence was high. A civil penalty in the amount of $2,282.00 was assessed
for the violation.

A.    Relevant Testimony

(1)   Inspector David Cheney

Cheney testified that there was
a large spill, consisting of powder looking material, on the top of the fines
tank. Tr. 118; Ex. G-17. The powder was over the toe boards, which was along
the outer edge, and at the back side of the tank. Tr. 120. The depth of powder
was approximately 6 inches deep, lower in the middle, and extended over an area
of approximately 12 feet by 12 feet or 14 feet by 14 feet. Tr. 120, 125. There
were also footprints in the powder. Tr. 118, 120.

Cheney asserted that the area
was a workplace because two maintenance men were changing a pipe in the area at
the time the citation was issued. Tr. 126, 127. There was also a dust collector
in the area which Cheney maintained would require bag changes on a regular
basis because the bags get clogged. Tr. 128, 129; Ex. G-18.

(2)   Nick Kingston

Kingston confirmed that at the
time that the citation was issued, there was a leak at the top of the fines
tank and maintenance was in the process of fixing it. Tr. 215-16. He stated
that maintenance had been working to replace the pipe since at least July 31.
Tr. 298. Kingston maintained that generally, only maintenance would need to
access the top of the fines tank to conduct inspections of the dust collector.
Tr. 215. He was “pretty sure” the inspection was done once every 3 months. Tr.
215.

Respondent argues that the
citation should be vacated because welding work justifiably delayed clean-up.
R. Resp. Br. at 5. As stated above, the Act imposes strict liability for
violation of a standard without regard to fault. Ames Construction, Inc.,
33 FMSHRC at 1611. That welding work delayed clean-up is not a valid defense.

Maintenance men were working on top of the fines tank to replace the leaking
pipe at the time that the citation was issued and maintenance on the dust
collector would have to be performed about once every 3 months. Work was
clearly being conducted in the area, making it a workplace. Taft failed to keep
the top of the fines tank clean and orderly by allowing powder to accumulate in
a large area at depths of up to 6 inches. I find that Respondent violated
section 56.20003(a).

Findings and Conclusions

(1)   Significant & Substantial

Cheney maintained that the
spillage contributed to a discrete hazard, a miner slipping, tripping, falling,
or hitting his head on a pipe. Tr. 130. The violation being S&S turns on whether the hazard was reasonably
likely to result in an injury causing event and whether it was reasonably
likely that an injury would be of a reasonably serious nature.

Cheney determined that injury to
one person was reasonably likely because miners were working in the area,
walking through the powder, and no one had reported the spill. Tr. 129, 130. He
posited that the spill created a slip, trip, and fall hazard that could have resulted
in a twisted ankle or a miner hitting his head on one of the several pipes in
the area, causing lost workdays or restricted duty.[12] Tr. 130; Ex. G-17.

At least two maintenance men had
been working to replace the leaking pipe since July 31, 2012. They had been
walking through the powder, which was up to 6 inches deep in some areas, and
the spill had gone unreported at the time that the citation was issued. These
conditions contributed to a discrete safety hazard, a miner slipping, tripping,
falling, or hitting his head on a pipe. These hazards could have resulted in
injuries such as a twisted ankle, cuts, bruises, or head trauma, resulting in
lost workdays or restricted duty.

Based on these facts, I find
that the violation was reasonably likely to result in an injury of a reasonably
serious nature to one miner, and that Cheney properly determined that the
violation was S&S.

(2)   Negligence

Cheney marked the level of
negligence as high because he believed that Respondent knew about the spill and
took no action to clean it up. Tr. 130. He based this belief on the fact that
Chris Atkins, the maintenance supervisor, told him that the pipe was being
replaced over the last few days. Tr. 131, 224. Cheney stated that when he asked
Atkins why the spill had not been cleaned up, Atkins had no response. Tr. 131.
Cheney did not review the workplace exam records that covered the top of the
fines tank. Tr. 131-32.

A finding of high negligence is
appropriate when “[t]he operator knew or should have known of the violative
condition or practice, and there are no mitigating circumstances.” 30 C.F.R. §
100.3.

Atkins, a supervisor and agent
of Taft, had knowledge that the maintenance men were replacing a pipe and chose
to remain silent when asked by Cheney why the spill was not cleaned. While this
may imply that Atkins was aware of the spill, there was no direct testimony as
to whether Atkins had actually visited the top of the fines tank, and Cheney
failed to check the workplace exam records to confirm his belief. Nevertheless,
since work was being conducted in the area, Respondent, at the very least,
should have known about the violative condition. The fact that the top of the
fines tank was usually accessed infrequently is not a mitigating factor since
men were performing maintenance in the area at the time of the inspection and
workplace exams were being conducted. Because neither the Secretary nor
Respondent provided any additional information that would constitute a mitigating
circumstance, I find that the level of negligence was properly marked as high.

III.            
Civil Penalty Criteria

Section 110(i) of the Act grants
the Commission the authority to assess all civil penalties provided in the Act.

In assessing civil monetary penalties, the
Commission shall consider the operator’s history of previous violations, the
appropriateness of such penalty to the size of the business of the operator
charged, whether the operator was negligent, the effect on the operator’s
ability to continue in business, the gravity of the violation, and the
demonstrated good faith of the person charged in attempting to achieve rapid
compliance after notification of a violation.

30 U.S.C. § 820(i).

1.      History of
Previous Violations

Taft’s history of violations is reflected in a report from MSHA’s database,
referred to as an R-17. Ex. G-21. The report reflects that 22 violations became
final between April 2011 and July 2012. I accept the figures in the report as
accurate, but there is no way to determine whether the numbers are high,
moderate, or low. See Cantera Green, 22 FMSHRC 616, 623-24 (May 2000).
The Secretary’s form reflecting the originally assessed penalty amounts for the
litigated violations (Secretary’s Exhibit A)[13], does however, give some qualitative
information by assigning points for the number of violations. 30 C.F.R. §
100.3(c). For total violation history, points used in the penalty calculation
are assigned on the basis of the number of violations per inspection day,
ranging from 0 points for 0 to 0.3 violations per day to 25 points for in
excess of 2.1 violations per day. The assessment form for the litigated
violations in this case reflects an assessment of 19 points for overall
violation history. I find that Taft’s history of violations is fairly high.

2.      Size of the
Operator

The parties did not stipulate to the size of the operator, however, the forms
reflecting calculations of the proposed penalties require a determination of
the size of the mine operator. The size is calculated “by using both the size
of the mine cited and the size of the mine’s controlling entity.” 30 C.F.R. §
100.3(b). The size of the mine and the size of the mine’s controlling entity
was assigned 6 points out of a possible 15 and 10 points respectively. As the
operator did not contest this determination, I find the operator to be medium
in size.

3.      Ability to
Continue in Business

The parties stipulated that payment of the proposed penalties in this case will
not affect Taft’s ability to continue in business, and I so find. Stip. 8.

4.      Good Faith
Abatement

The Secretary stipulated that Taft exercised good faith in terminating the
citations in a timely manner, and I so find. Stip. 9.

Given the foregoing, I find the
civil penalties assessed by the Secretary are appropriate.

IV.            
Civil Penalty Assessments

Citation No. 8689617 is AFFIRMED
as issued.

Citation No. 8689619 is AFFIRMED
as issued.

Citation No. 8689620 is AFFIRMED
as issued.

Citation No. 8689621 is AFFIRMED
as issued.

ORDER

It is ORDERED that the operator pay a total penalty of $3,321.00 within
30 days of the date of this decision.[14]

/s/ James G. Gilbert

James G. Gilbert

Administrative
Law Judge

Distribution (Certified Mail)

Pamela F. Mucklow, U.S. Department of Labor, Office of
the Solicitor, 1999 Broadway, Suite 800, Denver, CO 80202

Larry R. Evans, Oil Dri Corporation of America, 28990
Georgia Highway 3N, Ochlocknee, GA 31773

[1] Prior to the hearing, Respondent filed a Motion
for Summary Decision and the Secretary filed a response in opposition. I
declined to rule on the pending motions at that time, and took the motions
under advisement. The summary decision briefs are referred to in this opinion
as Resp. Br. and Sec’y Br. Tr. 308. Each party was permitted to file a
supplemental post-trial brief with additional arguments (referred to in this
opinion as R. Resp. Br. and Sec’y Resp. Br.).

[2] David Cheney has been an MSHA inspector for 11 years.
Tr. 13. Prior to joining MSHA, Cheney was a miner at Riverside Cement, an open
pit mine, for 23 years. Tr. 14.

[3] Nick Kingston has been employed by Taft for 7 years.
Tr. 193. He has held positions such as laborer, line leader, and order
processor during that time and is currently the team leader of processing. Tr.
193.

[4] While the pictures introduced during the hearing depict
dates on which the citations were not issued, Cheney testified that the
batteries went dead on his camera and when the batteries were replaced, he did
not modify the date. Tr. 22-23. He asserted that the photographs were actually
taken on the dates that the citations were issued. Tr. 23-24. I find Cheney’s
explanation to be credible.

[5] Cheney stated that he slipped on the material after
stepping onto it. Tr. 139.

[6] Respondent makes the same argument for the three
citations discussed below as well. The issues of jurisdiction (Taft being a
mining operation), fair notice, and duplication will be applicable to each
citation in this proceeding. The issue of whether the area where the spill
occurred was a workplace and/or passageway will be addressed in each individual
citation discussion.

[7]
This determination is consistent with several other ALJ findings. U.S.
Silica Co., 32 FMSHRC 1699, 1706-08 (Nov. 2010) (ALJ) (affirming violations
of section 56.20003 where there were accumulations on top of a bin that miners
would access once a month to perform maintenance. There was an access ladder
leading to the top of the bin, a catwalk leading to other bins, and
footprints.); USS, a Division of USX Corp., 13 FMSHRC 145, 153 (Jan.
1991) (ALJ) (affirming a violation of section 56.20003 and stating that “the
standard applies to all workplaces and passageways, even though no work was being
performed at the time of the cited violations, and even though the passageways
were not designated or regularly used as such.”); Brubaker-Mann, Inc., 8
FMSHRC 1482, 1483 (Sept. 1986) (ALJ) (affirming a violation of section 56.20003
where there was a build-up of powdery fines that created a slip, trip, and fall
hazard on a walkway that would only be accessed by a miner to perform
maintenance.).

[8] He did check workplace exam records, but somewhat
infrequently, and there was no direct testimony that he was in charge of safety
and compliance measures. Tr. 283.

[9] While there were discrepancies in the time when
clean-up was done on the 102 silo and the time that the citation for elevator
101 was issued, Kingston acknowledged that the amount of build-up on the floor
was more than what would have been swept off of the silo. In addition, there
was no mention by either party of barricades in the area of the elevator that
Kingston stated were put up when cleaning off the silo. This leads me to
believe that the silo was not cleaned off until after this citation was issued.

[10] Kingston clarified that in Exhibit 15A, the A marked
by Cheney was not the auger but an omnilift, which is a conveyor. Tr. 287. The
long horizontal pipe marked P is the auger. Tr. 288.

[11] Roy Long signed off on this exam but it was not
mentioned in the record if he was an agent of Taft. Tr. 282.

[12] Cheney also posited that a miner could have suffered
a fatal injury if he slipped and fell through the railing. Tr. 129. No
additional support to this theory was discussed and the occurrence appears
highly unlikely.

[13]
The Secretary’s Exhibit A was filed with the
penalty petition.

[14] 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.