Secretary of Labor v. Stone Plus, Inc.

Read the official release (fmshrc.gov)

Plain-English summary

MSHA cited Stone Plus for thirteen conditions at its small quarry, including missing berms and guards, defective loader brakes and seat belt, inadequate overtravel protection, and failure to conduct workplace and equipment examinations. Judge L. Zane Gill rejected the operator's jurisdictional defense because Stone Plus had not filed a closure notice and was preparing equipment for mining, so the site remained a mine under the Act. He found every violation involved high negligence and unwarrantable failure, found all but one significant and substantial, and assessed the statutory minimum penalty of $2,000 for each citation or order. The total penalty was $28,000.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.9300(a), 56.9300(b), 56.9301, 56.14100(a), 56.14101(a)(1), 56.14107(a), 56.14112(b), 56.14130(i), and 56.18002(a)
• Outcome: One citation and twelve orders were sustained, each as an unwarrantable failure, with penalties totaling $28,000.
• Key point: A mine remains subject to MSHA jurisdiction while equipment is being prepared for mining when the operator has not filed the required closure notice.

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,

v.

STONE
PLUS, INC.,

Respondent.

CIVIL
PENALTY PROCEEDINGS

Docket
No. WEST 2013-0263-M

A.C.
No. 42-02587-303318

Docket
No. WEST 2013-0440-M

A.C.
No. 42-02587-308740

Mine:
Portable #1

DECISION AND
ORDER

Appearances:               Brian
Kaufman, Esq., U.S. Dept. of Labor, Office of the Solicitor, Denver, CO, for
the Petitioner;

Keen
Ellsworth, Esq., Ellsworth & Associates, Ltd., Las Vegas, NV, for the Respondent.

Before:                                    Judge
L. Zane Gill

This proceeding under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994), involves one
section 104(d)(1) citation and twelve 104(d)(1) orders, 30 U.S.C. § 814(d)(1),
issued by the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) to Stone Plus, Inc. at its Portable #1 mine. The parties presented
testimony on March 4th and 5th, 2014, and June 3rd and 4th, 2014, in Salt Lake
City, UT.

Stone Plus is a small, three-tiered quarry
with a screening plant and crusher. The operator uses a front-end loader[1] to
transport raw and finished product -- a high quality rock used primarily for
landscaping. Before Stone Plus began operating in August, 2012, it had contracted
with various companies to perform the same services it intended to do for
itself.[2]

Inspectors Steven Polgar[3] and Mike Tromble[4] were on
site for four days in August, 2012, to perform a hazardous condition complaint
inspection[5]
and a regular inspection. (Tr. 25:3 –26:10; Tr. 34:17-25) When they arrived at
the mine site there was no one on the property, and no machines were running. (Tr.
36:1-7)

Three months prior, in May, 2012, Polgar
and Tromble had been at the Stone Plus site for another hazardous condition complaint
inspection. (Tr. 27:9-18; Tr. 614:17 - 20) At that time, Stone Plus was
operating without a mine identification number. (Tr. 615:18 – 616:11) As part
of that interaction, Fred Sanchez, of MSHA's Educational Field Services
division, assisted Stone Plus’s owner, Neil Bradshaw,[6] to set up a
Part 46 training plan. (Tr. 800:3-7; Tr. 682:1-9) During the May inspection,
Tromble, Polgar, and Bradshaw discussed the screening plant, berms, guards, mobile
equipment braking systems, workplace examinations, pre-shift examinations on
mobile equipment, load-out areas, overtravel protection, Rules To Live By
Standards, and unwarrantable failure enhanced enforcement. (Ex. S-4; Ex. S-5;
Tr. 683:3 – 693:24; Tr. 800:18 – 801:1) Bradshaw was also given a checklist
outlining certain MSHA requirements. (Ex. S-12C)

The August 2012 hazardous condition complaint
alleged that: 1) the screening plant was missing guards; 2) there were missing
berms on the ramps and pads; 3) there were no fire extinguishers at the mine;
4) the brakes on the Caterpillar 950C loader had failed; 5) there was too much
dust at the mine; 6) no dust masks were provided at the mine; 7) there was no
first aid kit; and, 8) safety training was inadequate. (Ex S-6; Tr. 29:8-22) Polgar
found evidence to substantiate allegations 1, 2, and 4. (Tr. 30:3-17)

In summary, and for the following
reasons, I conclude that:

·        
For
Citation No. 8593603, and Order No. 8593604, Stone Plus violated Section
56.9300(a), injury was reasonably likely, the injury could reasonably be
expected to be a fatality, the violation was significant and substantial, one
person was affected, there was high negligence, and an unwarrantable failure
existed. I assess a penalty of $2,000.00 for each violation.

·        
For
Order No. 8593607, Stone Plus violated Section 56.9300(b), injury was unlikely,
the injury could reasonably be expected to be permanently disabling, the
violation was not significant and substantial, one person was affected, there
was high negligence, and an unwarrantable failure existed. I assess a penalty
of $2,000.00.

·        
For
Order No. 8593609, Stone Plus violated Section 56.9300(a), injury was
reasonably likely, the injury could reasonably be expected to be permanently
disabling, the violation was significant and substantial, one person was
affected, there was high negligence, and an unwarrantable failure existed. I
assess a penalty of $2,000.00.

·        
For
Order No. 8593611, Stone Plus violated Section 56.9301, injury was reasonably
likely, the injury could reasonably be expected to be permanently disabling
injury, the violation was significant and substantial, one person was affected,
there was high negligence, and an unwarrantable failure existed. I assess a
penalty of $2,000.00.

·        
For
Order No. 8593613, Stone Plus violated Section 56.14101(a)(1), injury was
reasonably likely, the injury could reasonably be expected to be a fatality, the
violation was significant and substantial, one person was affected, there was
high negligence, and an unwarrantable failure existed. I assess a penalty of $4,000.00.

·        
For
Order No. 8593614, Stone Plus violated Section 56.14130(i), injury was
reasonably likely, the injury could reasonably be expected to be a fatality, the
violation was significant and substantial, there was high negligence, one person was
affected, and
an
unwarrantable failure existed. I assess a penalty of $2,000.00.

·        
For
Order No. 8593617, Stone Plus violated Section 56.14100(a), injury was
reasonably likely, the injury could reasonably be expected to be a fatality, the
violation was significant and substantial, there was high negligence, one person was
affected, and an unwarrantable failure existed. I assess a penalty of
$2,000.00.

·        
For
Order No. 8593605, Stone Plus violated Section 56.14112(b), injury was
reasonably likely, the injury could reasonably be expected to be permanently
disabling, the violation was significant and substantial, there was high negligence,
one person was affected, and an unwarrantable failure existed. I assess a
penalty of $2,000.00.

·        
For
Order No. 8593606, Stone Plus violated Section 56.14107(a), injury was
reasonably likely, the injury could reasonably be expected to be a fatality, the
violation was significant and substantial, there was high negligence, one
person was affected, and an unwarrantable failure existed. I assess a penalty
of $2,000.00.

·        
For
Order No. 8593608, Stone Plus violated Section 56.14107(a), injury was reasonably
likely, the injury could reasonably be expected to be permanently
disabling, the violation was significant and substantial, there was high
negligence, one person was affected, and an unwarrantable failure existed. I
assess a penalty of $2,000.00.

·        
For
Order No. 8593610, Stone Plus violated Section 56.14107(a), injury was
reasonably likely, the injury could reasonably be expected to be a fatality, the
violation was significant and substantial, there was high negligence, one
person was affected, and an unwarrantable failure existed. I assess a penalty
of $2,000.00.

·        
For
Order No. 8593616, Stone Plus violated Section 56.18002(a), injury was
reasonably likely, the injury could reasonably be expected to be a fatality, the
violation was significant and substantial, there was high negligence, one
person was affected, and an unwarrantable failure existed. I assess a penalty
of $2,000.00.

·        
Total
Penalty Assessment: $28,000.00.

Preliminary
Matters

Jurisdiction

The Respondent argued that MSHA lacked
jurisdiction over the mine site because the mine was temporarily closed in
accordance with 30 C.F.R. § 56.1000. (Resp. Br. at 2) However, as the Secretary
correctly pointed out, Stone Plus failed to file a closure notice with MSHA as
required by Section 56.1000. (Tr. 113:9-13; Tr. 660:14-17) Therefore, MSHA was
not on notice that the mine was closed or not in operation, and thus retained
jurisdiction over the mine site.

Stone Plus also argued that MSHA did not
have jurisdiction over the site because it was not in production. (Resp. Br. at
2) Irrespective of this argument, the Respondent repeatedly admitted that it
was setting up the screening plant and the crusher for mining, and as such,
MSHA had jurisdiction over the mine.[7]
(Tr. 812:13 – 813:9; Tr. 815:3; Tr. 872: 11-12; Tr. 877: 11-12; Tr. 918:4-8)

Section 4 of the Mine Act provides that
“[e]ach coal or other mine […] shall be subject to the provisions of this Act.”
30 U.S.C. § 803. “Coal or other mine” is defined in Section 3(h)(1) of the Act
as:

(A) an area of land from which minerals
are extracted […] and (C) lands, excavations, underground passageways,
shafts, slopes, tunnels and workings, structures, facilities, equipment,
machines, tools, or other property […] used in, or to be used in, or
resulting from, the work of extracting such minerals […]

30
U.S.C. § 802(h)(1) (emphases added).

The statute’s plain meaning gives MSHA
authority over areas where mining equipment is being set up, i.e. equipment “to
be used in” the work of extracting minerals, because the area is considered a
mine for purposes of jurisdiction. Id.; See Donovan v. Carolina
Stalite Co., 734 F.2d 1547, 1553-54 (D.C. Cir. 1984); Royal Cement Co.,
Inc., 31 FMSHRC 1459, 1462 (Dec. 2009)(ALJ Manning); Recon Refractory
& Constr., Inc., 34 FMSHRC 1722, 1728 (July 2012)(ALJ Paez) (“Therefore,
so long as the activities are in preparation of future mining activities, those
activities fall within MSHA jurisdiction.”); Khani Co., Inc., 32 FMSHRC
1339, 1342 (Sept. 2010)(ALJ Moran) (MSHA had jurisdiction to inspect a closed
mine because the company “was preparing to resume operations.”); The Pit,
16 FMSHRC 2008, 2010 (Sept. 1994)(ALJ Hodgdon) (The Mine Act is “intended to
protect employees from injury whether they are setting up equipment or engaged
in production.”); S.Rep. No. 95-181, 95th Cong., 1st Sess.
14 (1977), reprinted in U.S.Code Cong. & Ad. News 1977, 3401, 3414.

The Respondent admitted it was setting
up its mining equipment for production.[8]
Therefore, I find that MSHA had jurisdiction over Stone Plus at the time the
citation and orders were written.

Inability to Pay Fine

The Respondent argued that the
Secretary’s proposed penalties should be reduced because of Stone Plus’s
inability to pay. (Resp. Br. at 15)

In setting civil penalties, Commission
judges are required to consider whether the fines will impede the mine’s
ability to continue in business. 30 U.S.C. § 820(i). Operators bear the burden
of proof when arguing for penalty reductions on this basis. Spurlock Mining
Co., Inc., 16 FMSHRC 697, 700 (Apr. 1994); Georges Collieries, 24
FMSHRC 572, 575 (June 2002)(ALJ Barbour). The damage alleged by operators must
be supported by specific evidence. Broken Hill Mining, 19 FMSHRC 673,
677 (Apr. 1997). General information, such as tax returns, may be inadequate to
prove an inability to pay since these do not directly relate to the effects of
proposed penalties. See Spurlock, 16 FMSHRC at 700.

Stone
Plus’s 2011 and 2012 tax returns (as well as the operator’s personal tax
returns for those years) were referenced in its post-hearing brief as evidence
supporting its argument. However, the returns were not admitted into evidence
at the hearing, and Stone Plus provided no testimony whatsoever regarding its
inability to pay or what impact the fines would have on the mine’s ability to
continue business. Therefore, the Respondent failed to meet its burden of proving
that it is unable to pay the proposed penalties.

Credibility Determination

An ALJ's credibility determination is
“entitled to great deference,” Am. Coal Co. v. Fed. Mine Safety & Health
Review Comm'n, 796 F.3d 18, 31 (D.C. Cir. 2015) (citing Sec'y of
Labor v. Keystone Coal Mining Corp., 151 F.3d 1096, 1107 (D.C.Cir.1998))
and “entitled to great weight.” Farmer v. Island Creek Coal Co., 14
FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh Coal Co., 3 FMSHRC 2767,
2770 (Dec. 1981). This is because the ALJ “has an opportunity to hear the
testimony and view the witnesses [,] he [or she] is ordinarily in the best
position to make a credibility determination.” In re: Contests of Respirable
Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 1995) (quoting
Ona Corp. v. NLRB, 729 F.2d 713, 719 (11th Cir. 1984)), aff'd sub
nom. Sec'y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir.
1998).

I find that Bradshaw’s testimony at the
hearing was generally not credible. [9]
This is based on the record as a whole, my careful observation of the
witness during his testimony, and his demeanor at the hearing. Additionally, there
were several inconsistencies between his testimony at the hearing and his
deposition, and between his testimony and the testimonies of other witnesses.

For example, Bradshaw claimed that he
was just setting up the crusher and the screening plant on August 11, 2012.
(Tr. 918:12-21) However, he admitted that he demonstrated the functionality of the
crusher and screening plant for someone interested in buying the crusher. (Tr.
913:15 – 914:1; Tr. 918:4-8) Indeed, he admitted that he ran six to eight tons of
material through the crusher for the demonstration and ran more than four
bucket-loads through the screening plant.[10]
(Tr. 919:2 – 920:16) It is clear that he was not just “setting up” the mine.

Additionally, at the time of the
inspection, Bradshaw attempted to deceive the inspector when performing a pull-through
test[11]
on the front-end loader. He put his foot on the clutch, which prevented power
from being transferred to the driveline and tried to create the impression that
the brakes were functioning properly. (Tr. 46:21 – 47:25) Bradshaw denied this
deceit by claiming he thought there were two service brakes. (Tr. 859:15-17;
Tr. 861:1-3) However, anyone who has operated trucks knows the difference
between the clutch, the drive pedal, and the brake pedal, especially someone like
Bradshaw who has operated front-end loaders for approximately fifty years. (Tr.
48:21 – 49:3; Tr. 937:18-24)

Further, despite Bradshaw’s testimony
that no mining or work occurred after August 11, 2012, (Tr. 811:13-20) the front-end
loader was moved from where it had been the first inspection day to a different
location by the last inspection day. (Ex. S- 9G; Ex. S-14; Tr. 100:9-12; Tr. 145:3-10;
Tr. 275:25 – 276:4; Tr. 297:20-25; Tr. 496:6-13; Tr. 700:19 – 701:3) Clearly, a
miner was at the site after August 11, 2012, and had at least moved equipment.

Finally, during the testimony at the
hearing, Bradshaw claimed that there were plywood guards covering the rollers
on the screening plant on August 11, 2012, when he was using the plant, but that
the guards were removed at the end of the day. (Tr. 927:25 -928:20) However,
during Bradshaw's deposition, he testified that the plywood found at the site was
never on the plant, was merely placed on the ground near the plant, and that he
used only some of the plywood around the bottom of the plant to prevent rocks
from going under it. (Tr. 932:19 – 933:23; Tr. 936:6-10)

Basic
Legal Principles

Significant and
Substantial                         

The citation and orders in dispute and
discussed below have been designated by the Secretary as significant and
substantial (“S&S”). A violation is properly designated S&S “if, based
upon the particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness
of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981). The question of whether a particular violation is S&S
must be based on the particular facts surrounding the violation. Texasgulf,
Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9
FMSHRC 2007 (Dec. 1987). S&S enhanced enforcement is applicable only to
violations of mandatory health and safety standards. Cyprus Emerald Res.
Corp. v. FMSHRC, 195 F.3d 42, 45 (D.C. Cir. 1999). The Secretary
bears the burden of proving all elements of a citation by a preponderance of
the evidence. In re: Contests of Respirable Dust Sample Alteration
Citations: Keystone Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d
151 F.3d 1096 (D.C. Cir. 1998); Jim Walter Resources, Inc., 30
FMSHRC 872, 878 (Aug. 2008) (ALJ Zielinski) (“The Secretary’s burden is to
prove the violations and related allegations, e.g., gravity and negligence, by
a preponderance of the evidence.”)

In Mathies Coal Co., the
Commission established the standard for determining whether a violation was
S&S:

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.

6
FMSHRC 1, 3-4 (Jan. 1984).

The third element of the Mathies
test presents the most difficulty when determining whether a violation is
S&S. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug.
1985), the Commission provided additional guidance: [T]he third element of the Mathies
formula “requires that the Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which there is an injury.”
(citing U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (Aug. 1984)). The
Secretary, however, “need not prove a reasonable likelihood that the violation
itself will cause injury.” Cumberland Coal Res., 33 FMSHRC 2357, 2365
(Oct. 2011) (citing Musser Engineering, Inc. and PBS Coals, Inc., 32
FMSHRC 1257, 1281 (Oct. 2010)). Further, the Commission has found 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)). This evaluation is
also made in consideration of the length of time that the violative condition
existed prior to the citation and the time it would have existed if normal
mining operations had continued. Elk Run Coal Co., 27 FMSHRC at 905; U.S.
Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984).[12]

Negligence

“Negligence” is not defined in the Mine
Act. The Commission, has, however,

recognized that
“[e]ach mandatory standard … carries with it an accompanying duty of care to
avoid violations of the standard, and an operator's failure to meet the
appropriate duty can lead to a finding of negligence if a violation of the
standard occurs.” A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan.
1983). In determining whether an operator met its duty of care, we consider
what actions would have been taken under the same circumstances by a reasonably
prudent person familiar with the mining industry, the relevant facts, and the
protective purpose of the regulation. See generally U.S. Steel Corp.,
6 FMSHRC 1908, 1910 (Aug. 1984).

Jim
Walter Res. Inc.,
36 FMSHRC 1972, 1975 (Aug. 2014); Brody Mining, LLC, 37 FMSHRC
1687, 1702. (Aug. 2015); Spartan Mining Co., 30 FMSHRC 699, 708 (Aug.
2008). “Thus in making a negligence determination, a Judge is not limited to an
evaluation of allegedly ‘mitigating’ circumstances. Instead, the Judge may
consider the totality of the circumstances holistically.” Brody Mining, LLC,
37 FMSHRC at 1702.

Part 100 regulations “apply only to the
proposal of penalties by MSHA and the Secretary of Labor; under both Commission
and court precedent, the regulations do not extend to the independent
Commission, and thus the MSHA regulations are not binding in any way in
Commission proceedings.” Id. at 1701-02 (citing Jim Walter Res. Inc.,
36 FMSHRC at 1975 n.4; Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147,
1151-52 (7th Cir. 1984), aff'g 5 FMSHRC 287 (Mar. 1983) (“[N]either the
ALJ nor the Commission is bound by the Secretary's proposed penalties … we find
no basis upon which to conclude that [MSHA's Part 100 penalty regulations] also
govern the Commission.”)).

Although the Secretary's part 100
regulations are not binding on the Commission, the Secretary's definitions of
negligence in those provisions are illustrative. According to the Secretary,
negligence is “conduct, either by commission or omission, which falls below a
standard of care established under the Mine Act to protect miners against the
risks of harm.” 30 C.F.R. § 100.3(d). “A mine operator is required
[…] to take steps necessary to correct or prevent hazardous conditions or
practices.” Id. “Reckless negligence is present when “[t]he operator
displayed conduct which exhibits the absence of the slightest degree of care.” Id.
High negligence is when “[t]he operator knew or should have known of the
violative condition or practice, and there are no mitigating circumstances.” Id.
Moderate negligence is when “[t]he operator knew or should have known of
the violative condition or practice, but there are mitigating circumstances.” Id.
 Low negligence is when “[t]he operator knew or should have known of the
violative condition or practice, but there are considerable mitigating
circumstances.” Id. No negligence is when “[t]he operator exercised
diligence and could not have known of the violative condition or practice.” Id.

Mitigation is something the operator
does affirmatively, with knowledge of the potential hazard being mitigated,
that tends to reduce the likelihood of an injury to a miner. This includes
actions taken by the operator to prevent or correct hazardous conditions.

Gravity

The gravity
penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is
often viewed in terms of the seriousness of the violation.” Consolidation
Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996) (citing Sellersburg Stone
Co., 5 FMSHRC 287, 294-95 (March 1983), aff'd, 736 F.2d 1147 (7th
Cir. 1984) and Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681 (Apr.
1987)). The seriousness of a violation can be examined by looking at the
importance of the standard which was violated and the operator’s conduct with
respect to that standard, in the context of the Mine Act’s purpose of limiting
violations and protecting the safety and health of miners. See Harlan
Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ Fauver). The
gravity analysis focuses on factors such as the likelihood of an injury, the
severity of an injury, and the number of miners potentially injured. The
Commission has recognized that the likelihood of injury is to be made assuming
continued normal mining operations without abatement of the violation. U.S.
Steel Mining Co., 7 FMSHRC at 1130.

Unwarrantable
Failure

In Lopke Quarries, Inc., 23
FMSHRC 705, 711 (July 2001), the Commission reiterated the law applicable to
determining whether a violation is the result of an unwarrantable failure:

The
unwarrantable failure terminology is taken from section 104(d) of the Act, 30
U.S.C. § 814(d), and refers to more serious conduct by an operator in
connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec.
1987), the Commission determined that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. Id. at 2001.
Unwarrantable failure is characterized by such conduct as “reckless disregard,”
“intentional misconduct,” “indifference,” or a “serious lack of reasonable
care.” Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13
FMSHRC 189, 194 (Feb. 1991) (“R&P”); see also Buck Creek [Coal,
Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995)] (approving Commission's
unwarrantable failure test).

See
Manalapan Mining Co.,
35 FMSHRC 289, 293 (Feb. 2013). Whether conduct is “aggravated” in the context
of an unwarrantable failure analysis is determined by looking at all the facts
and circumstances of each case to see if any aggravating factors exist. Big
Ridge, Inc., 34 FMSHRC 119, 125 (Jan. 2012) (ALJ Zielinski). These include:

(1) the extent
of the violative condition, (2) the length of time that the violative condition
existed, (3) whether the violation posed a high degree of danger, (4) whether
the violation was obvious, (5) the operator's knowledge of the existence of the
violation, (6) the operator's efforts in abating the violative condition, and
(7) whether the operator had been placed on notice that greater efforts were
necessary for compliance. See IO Coal Co., 31 FMSHRC 1346, 1351-57 (Dec.
2009); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev'd
on other grounds, 195 F.3d 42 (D.C. Cir. 1999).

Manalapan
Mining Co.,
35 FMSHRC at 293; ICG Hazard, LLC, 36 FMSHRC 2635, 2637,

(Oct.
2014); Sierra Rock Products, Inc., 37 FMSHRC 1, 4 (Jan 2015); Consolidation
Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Cyprus Emerald Res. Corp.,
20 FMSHRC 790, 813; Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins
& Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co.,
14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc., 14 FMSHRC
1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709
(June 1988) All of the relevant facts and circumstances of each case must be
examined to determine if an actor's conduct is aggravated, or whether
mitigating circumstances exist. Consolidated Coal, 22 FMSHRC at
353; IO Coal, 31 FMSHRC at 1351; Manalapan Mining Co., 35 FMSHRC at

293. “Because supervisors are held to a high standard of care, another important
     factor supporting an unwarrantable failure determination is the involvement of
     a supervisor in the violation.” Big Ridge, Inc., 34 FMSHRC at 125; REB
     Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998).

Penalty

The principles
governing the authority of Commission administrative law judges to assess civil
penalties de novo for violations of the Mine Act are well established. Section
110(i) of the Mine Act delegates to the Commission and its judges the
“authority to assess all civil penalties provided in [the] Act.” 30 U.S.C. §
820(i). The Act delegates the duty of proposing penalties to the Secretary. 30
U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it
intends to challenge a penalty, the Secretary petitions the Commission to
assess said penalty. 29 C.F.R. § 2700.28.

Under Section 110(i)
of the Mine Act, the Commission is to consider the following when assessing a
civil penalty: (1) the operator’s history of previous violations; (2) the
appropriateness of such penalty to the size of the business of the operator
charged; (3) whether the operator was negligent; (4) the effect on the
operator's ability to continue in business; (5) the gravity of the violation;
and (6) the demonstrated good faith in abatement of the violative condition. 30
U.S.C § 820(i). Thus, the Commission
alone is responsible for assessing final penalties. See Sellersburg
Stone Co. v. FMSHRC, 736 F.2d at 1151-52 (“[N]either the ALJ nor the
Commission is bound by the Secretary's proposed penalties … we find no basis
upon which to conclude that [MSHA's Part 100 penalty regulations] also govern
the Commission.”); See American Coal Co., 35 FMSHRC 1774, 1819 (July
2013)(ALJ Zielinski).

The Commission has repeatedly held that
substantial deviations from the Secretary's proposed assessments must be
adequately explained using the Section 110(i) criteria. E.g., Sellersburg
Stone Co., 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May
2000); Cantera Green, 22 FMSHRC 616, 620-21 (May 2000) (citations
omitted). A judge need not make exhaustive findings but must provide an
adequate explanation of how the findings contributed to his or her penalty
assessments. Cantera Green, 22 FMSHRC at 622.

Although all of the statutory penalty
criteria must be considered, they need not be assigned equal weight. Thunder
Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997). Generally speaking, the
magnitude of the gravity of a violation and the degree of operator negligence
are important factors, especially for more serious violations for which
substantial penalties may be imposed. Musser Engineering, 32 FMSHRC
at 1289 (judge justified in relying on utmost gravity and gross negligence in
imposing substantial penalty); Spartan Mining Co., 30 FMSHRC at 725
(appropriate for judge to raise a penalty significantly based upon findings of
extreme gravity and unwarrantable failure); Lopke Quarries, Inc., 23
FMSHRC at 713 (judge did not abuse discretion by weighing the factors of
negligence and gravity more heavily than the other four statutory criteria). For
example, violations involving “extreme gravity” and/or “gross negligence,” or,
as stated in the former section of 105(a), “an extraordinarily high degree of
negligence or gravity, or other unique aggravating circumstances,” may dictate
higher penalty assessments. See 30 C.F.R. Part 100 Final Rule, 72
Fed. Reg. 13592-01, 13,621.

In
addition, Commission ALJs are obligated to explain any substantial divergence
between a penalty imposed and that proposed by the Secretary. As explained
in Sellersburg Stone Co., 5 FMSHRC at 293:

When … it is
determined that penalties are appropriate which substantially diverge from
those originally proposed, it behooves that Commission and its judges to
provide a sufficient explanation of the bases underlying the penalties assessed
by the Commission. If a sufficient explanation for the divergence is not
provided, the credibility of the administrative scheme providing for the
increase or lowering of penalties after contest may be jeopardized by an
appearance of arbitrariness.

Citation
No. 8593603

Inspector Polgar issued Citation No. 8593603
to Stone Plus at its Portable #1 mine on August 14, 2012. It alleges a
violation of 30 C.F.R. § 56.9300(a). The regulation states: “[b]erms or
guardrails shall be provided and maintained on the banks of roadways where a
drop-off exists of sufficient grade or depth to cause a vehicle to overturn or
endanger persons in equipment.” 30 C.F.R. § 56.9300(a). Section 56.9300 is a
mandatory safety standard. The citation narrative alleges:

The roadway accessing the
crusher/screening plant located on the third tier/bench was not provided with
berms or guardrails as required where a drop off exists of sufficient grade or
depth to cause a vehicle to overturn or endanger persons in equipment. The drop
off from the third bench to the second bench was 7 ½ feet (measured) on
average. The third bench was 65 feet (approx.) wide and 180 feet (approx.) in
length. This area is used on a constant basis during operation for the purpose
of feeding the screening plant. The primary equipment utilizing this area was a
Cat 950 FEL (s/n 81J10961) and measured 30” from the ground to mid axle height.
The crusher was not in operation the day of inspection but had been previously
operating as evidenced by product stockpiles beneath the screening plant
discharge conveyors. Should a miner over travel the roadway and overturn his
equipment, serious if not fatal blunt force trauma injuries would be expected
to occur. Mine operator Neil Bradshaw engaged in aggravated conduct
constituting more than ordinary negligence in that he was aware of the volatile
condition and made no attempt to correct the hazard. This violation is an
unwarrantable failure to comply with a mandatory safety standard. This standard
56.9300a was cited 1 time in two years at mine 4202587 (1 to operator, 0 to
contractor).

Ex.
S-14

Violation

Citation No. 8593603 was issued as part
of the hazardous condition complaint inspection. The citation alleges that an
injury was reasonably likely, the injury could reasonably be expected to result
in a fatality, the violation was significant and substantial, one person could be
affected, and there was a high level of negligence. (Ex. S-14) Polgar issued
the citation because there were no berms or guardrails on the third tier of the
mine, which he considered a roadway. (Tr. 141:1-6; Tr. 366:8-21; Tr. 375:16-18)

The Respondent argued that it did not
violate 30 C.F.R. § 56.9300(a) because the area in question was not a “roadway,”
there was no drop-off from the third tier, vehicles did not travel near the
edge of the tier, and as such, a berm was not required. (Resp. Br. at 2–4) The
Secretary argued that Stone Plus was required to have berms on the tier because
the third tier was used as a roadway, and there was a drop-off high enough to
cause a vehicle to overturn. (Sec’y Br. at 26-27)

Section 56.9300(a) mandates that
“[b]erms or guardrails shall be provided and maintained on the banks of
roadways where a drop-off exists of sufficient grade or depth to cause a
vehicle to overturn or endanger persons in equipment.” When determining whether
an area is a “roadway,” the Commission has looked to the nature of its use. Capitol
Aggregates, Inc., 4 FMSHRC 846, 846-47 (May 1982). In Capitol Aggregates,
the Commission found that a ramp was a roadway when used by machinery to drive back
and forth over it. Id. Additionally, the Commission has found that “an
elevated area, such as a bench, is a roadway where a vehicle commonly travels
its surface during the normal mining routine.” Black Beauty Coal Co., 34
FMSHRC 1733, 1735 (Aug. 2012) (citations omitted); See El Paso Rock
Quarries, Inc., 3 FMSHRC 35, 36 (Jan. 1981); See Peabody Midwest Mining,
LLC., 762 F.3d 611, 615 (7th Cir. 2014).

However, “there may be a point at which
a roadway is so wide that berms are unnecessary,” unless the evidence shows vehicles
traveled near the bench’s edge. Good Constr., 21 FMSHRC 201, 202 (Feb.
1999)(ALJ Manning); Peabody Coal Co., 6 FMSHRC 2530, 2542 (Nov. 1984)
(no vehicle was shown to operate within 60 feet of an edge); See Arch of
Wyo., LLC, 32 FMSHRC 568, 575 (May 2010)(ALJ Manning); Peabody Coal Co.,
12 FMSHRC 109, 115–16 (Jan. 1990)(ALJ Lasher).

Here, the third tier was approximately
65 feet wide, 180 feet in length, and had a drop-off of 7.5 feet. (Ex. S-14A; Tr.
390:22 – 391:1; Tr. 141:23 – 142:4) Polgar determined that the 65 foot wide
tier was a roadway that required a berm[13]
because the area was used for travel by vehicles and equipment. (Tr. 367:2-12; Tr.
386:24 – 387:6; Tr. 391:2-7; Tr. 395:9-15; Tr. 398:11-14) I agree with this
determination.

Polgar testified that the front-end
loader had to travel the entire length of the tier to access the screening
plant and the crusher because there was only one entrance and exit from the
east side of the tier.[14]
(Tr. 145:17 – 147:2) Once there, the front-end loader transported product from
the crusher to the screening plant, which was located on the edge of the third
tier and had a conveyor that discharged over the edge. (Tr. 144:6-14) Then, to
load trucks with finished product, the front-end loader would have to travel
the entire length of the bench to get down to the second tier where the
stockpiles were located. (Tr. 145:17 – 146:1) The photographic evidence
presented at the hearing showed front-end loader tracks on the edge of the
third tier. (Ex. S-8B, 8D, 8E; Tr. 274:9-13) Polgar testified that if one of
the wheels of the front-end loader were to drive off the edge of the bank, it
would be enough to cause the loader to overturn (Tr. 147:7-12; Tr. 148:10-12), because
the ground was unconsolidated and could give if a vehicle drove too close to
the edge. (Tr. 148:5-12)

Bradshaw admitted that on August 11,
2012, he and his son hauled the crusher and the screening plant up the side
access road from the bottom of the pit to the third tier using a Volvo tractor
semi-truck. (Tr. 811:6-10; Tr. 812:13 – 813:9; Tr. 880:23 – 881:22; Tr.
882:5-11) Once on the third tier, Bradshaw drove across the tier until he found
the spot where he wanted to place the crusher. He did the same with the screening
plant, and maneuvered the machines into the proper locations. (Tr. 813:22-23; Tr.
883:2 – 884:5) Bradshaw also used the front-end loader to push material off the
edge of the third tier and to move product into different piles on the third
tier. (Tr. 893:7-15; Tr. 911:6-25)

Bradshaw claimed the tracks were made by
the contractor, Susan Martin, and also argued that the tier was not meant to be
a roadway. (Tr. 850:19 – 851:3) However, for purposes of determining whether an
area is a roadway, it does not matter whose vehicle traveled on it, or that the
area was not designed to be a roadway originally. (Tr. 777:20-23) The evidence
is clear that the third tier was used as a roadway by Bradshaw, not only to
transport and maneuver his equipment into place, but also during the course of
normal mining operations. Additionally, the photographic evidence and testimony
of Inspector Polgar confirms that the edge comprised loose, unconsolidated
material. If a vehicle overtraveled the edge, it could overturn and fall 7.5
feet to the tier below. For these reasons, I conclude that Stone Plus violated
Section 56.9300(a).

Negligence

Polgar designated the citation as high
negligence because it was an open and obvious condition, and Tromble had
informed Bradshaw of the berm/guardrail requirement three months prior, during the
May inspection. (Tr. 148:13-20; Tr. 723:25 – 724:4) Bradshaw knew he needed to
install berms or guardrails because he was instructed to do so.

Stone Plus argued that it was only on
site for one day, did not intentionally[15]
violate any rules, thought it was in compliance with the rules, and put a berm
on the edge as soon as it was instructed to do so. (Resp. Br. at 1-3) However, mitigation
is something an operator does affirmatively with the intent to protect miners. (Tr.
459:1-13) This includes actions taken by the operator to prevent or correct
hazardous conditions. The Respondent’s arguments do not constitute mitigation.

A reasonably prudent person familiar
with the mining industry would have installed berms or guardrails here. Based on
the above, it is clear that Stone Plus knew of the violative condition, and was
highly negligent.

Gravity

Without a berm to prevent overtravel, anyone
operating a vehicle or machinery on this roadway would be exposed to the hazard
of rolling over the edge. (Tr. 122:20 – 123:4) Being ejected or suffering head
trauma could easily cause a fatality.[16]
(Tr. 147:13-20) The citation was marked as one person affected because the
front-end loader only carries one person in the cab at a time. (Tr. 147:24 –
148:2) Since this mine was operated solely by Bradshaw, and possibly one other
miner, the single person designation was appropriate.

Significant and Substantial[17]

The first and fourth prongs of the Mathies
test have been met. The lack of a berm on the third tier created a discrete
safety hazard that a piece of mobile equipment might overturn and cause injuries
to a miner. (Tr. 147:13-20) The remaining question is whether there was a
reasonable likelihood that the hazard would result in an injury.

If a vehicle wheel were to go over the
edge of the tier, it could be enough to cause it to overturn, especially
considering that the ground was unconsolidated and could give way if a vehicle
drove too close to the edge. (Tr. 147:7-12; Tr. 148:5-12) There is a reasonable
likelihood of serious injury to a miner by dropping approximately 7.5 feet in
an overturned vehicle.

Further, assuming continuing normal
mining operations, the frequency of travel increases the probability of an
injury occurring. (Tr. 126:3-7) Bradshaw admitted that in addition to his traveling
across the tier, he allowed people to come onto the mine site to borrow the
front-end loader, and landscaping companies were given access to load material
from stock piles. (Tr. 901:11-18; Tr. 906:14-25) This would require traveling
across the tiers and into the mine pit. The Secretary has proved by a
preponderance of the evidence that the S&S designation was warranted.

Unwarrantable Failure[18]

There was no evidence that a berm ever
existed on the third tier. The tier was approximately 180 feet in length. (Tr.
128:12-17; Tr. 149:16-18) It was obvious that there was no berm. (Tr. 150:7-19)
This violation was covered in the hazardous condition complaint of August 13, 2012.
It existed at least since then. (Tr. 149:4-11) It can also be inferred that the
violation existed longer because Bradshaw admitted that he did not have time to
build any berms on the mine property and had been operating since at least August
11, 2012. (Tr. 131:8-14; Tr. 151:3-13) The violating condition was extensive
and was present for an extended period of time.  There was a high degree of
danger. It was reasonably likely that if the front-end loader or other vehicle overtraveled
the edge, it would overturn and possibly cause an ejection or head trauma fatality.
(Tr. 150:21-25) Polgar testified that Bradshaw was aware of the requirements of
the standard because he had been cited before. (Tr. 150:1-5) Additionally, at
the time the citation was written, Bradshaw acknowledged knowing about the
requirement that berms were required. When responding to a question why berms
were not in place, he responded that he did not have time to build them. (Tr. 151:3-13)
It is clear Bradshaw’s failure to install berms was intentional. The record
does not show that Bradshaw did anything to abate the violating condition
before the citation was issued.          

The
Secretary proved by a preponderance of the evidence that Stone Plus engaged in aggravated
conduct constituting of more than ordinary negligence. The violation
constituted an unwarrantable failure to comply with the regulation.

Penalty

The Secretary assessed the penalty for
this citation at $2,000.00, the minimum penalty under 30 U.S.C. § 820(a)(3)(A).
Stone Plus was highly negligent and the violation was S&S. The proposed penalty
will not affect the operator’s ability to continue in business. Therefore, I
assess a penalty of $2,000.00, as suggested by the Secretary.

Order
No. 8593604

Inspector Polgar issued Order No. 8593604
to Stone Plus at its Portable #1 mine on August 14, 2012, alleging a violation
of 30 C.F.R. § 56.9300(a). The regulation states that “[b]erms or guardrails
shall be provided and maintained on the banks of roadways where a drop-off
exists of sufficient grade or depth to cause a vehicle to overturn or endanger
persons in equipment.” 30 C.F.R. § 56.9300(a). Section 56.9300 is a mandatory
safety standard. The order alleges:

The second tier/bench of the mine was
not provided with berms or guardrails as required where a drop off exists of sufficient
depth or grade to cause a vehicle to overturn or endanger persons in equipment.
The second bench is used daily during production as a roadway by vehicles and
equipment accessing the crusher/ screening plant as well as to haul away
finished product. The drop off from the second bench to the bottom level was 7
½ feet to 8 feet (measured). The second bench was 225 feet (approx) long and
100 feet (approx.) wide. Should a miner overtravel the roadway/bench and overturn
his vehicle/equipment, serious if not fatal blunt force trauma injuries would
be expected to occur. Mine operator Neil Bradshaw engaged in aggravated conduct
constituting more than ordinary negligence in that he was aware of the
violative condition and made no attempt to correct the hazard. This violation
is an unwarrantable failure to comply with a mandatory standard. Standard
56.9300a was cited 2 times in two years at mine 4202587 (2 to the operator, 0
to a contractor).  

Ex.
S-13

Violation

Order No. 8593604 was issued as part of
the hazardous condition complaint inspection. It alleges that injury was reasonably
likely; the injury could reasonably be expected to be fatal; the violation was
significant and substantial; one person could be affected; and, the negligence level
was high. (Ex. S-13) Bradshaw admitted that the second tier did not have a
berm. (Tr. 826:3-6)

As above, I must determine whether the second
tier was a roadway with a significant grade to cause a vehicle to overturn or
endanger persons in equipment. Polgar concluded that the entirety of tier two
needed a berm because it was a roadway. (Tr. 386:24 – 387:6) As previously
mentioned, once the finished product was piled onto the second tier, the loader
would have to travel the length of the tier in order to load the product for
sale to a customer. (Tr. 115:25 – 116:24) When the front-end loader accessed
the pile, it would move the material to another pile so production could
continue, or it would load a truck with the material.[19] (Tr. 117:5-10)

The edge of the drop-off consisted of
loose, unconsolidated material, so the front-end loader would not have to drive
completely over the edge for it to overturn. (Tr. 121:4-25) Polgar testified
that it is more dangerous to drive at an angle or parallel to the edge than straight
onto an embankment. Id. The drop-off point from the second bench to the
bottom level was approximately 7.5 feet to 8 feet, which according to Polgar was
enough to cause a front-end loader to overturn. (Tr. 119:22 – 120:5; Tr. 123:21
– 124:2) The second tier was 225 feet long and 100 feet wide; a blue trailer was
parked in the middle of it. (Tr. 115:9-16; Tr. 122:1-9; Tr. 398:17-18; Ex. S13-E)

Bradshaw claimed that he did not use the
second tier, but at the hearing he testified that he used his pickup truck to tow
a blue trailer onto the second tier. (Tr. 889:19 – 890:7) After dropping off
the trailer, he returned to the access road. (Tr. 890:8-11) There were also numerous
tire tracks from the front-end loader and from a smaller vehicle on the second
tier bench and by the pile of finished product, indicating that, contrary to
Bradshaw’s denial, vehicles had indeed traveled on the tier.[20] (Tr. 124:3-19;
Tr. 276:19 – 277:3; Tr. 302:1-19; Ex. S-8F, 8H, 8G, 9J)

It follows that, in the case of an
injury or fire near the crusher or screening plant, someone would have to drive
across the third tier, down the side road, and across the second tier to reach
the blue trailer where a first aid kit and fire extinguisher were kept. Despite
Bradshaw’s claim that he did not consider the second tier a roadway (much like
the citation for the third tier above), it is clear that Bradshaw used the
second tier as a roadway, not only to transport and maneuver the blue trailer into
place, but also during the course of normal mining operations. (Tr. 826:8 – 827:7)
 The evidence photos and testimony of Inspector Polgar depict the edge as
loose, unconsolidated material. If a vehicle overtraveled the edge, it could
easily overturn and fall approximately 7.5 feet to 8 feet to the tier below. I conclude
that Stone Plus violated Section 56.9300(a).

Negligence

Polgar designated order as involving high
negligence because Bradshaw knew or should have known about the violative
condition, and there were no mitigating factors. (Tr. 129:9-16) He further
stated that it was "inconceivable" that somebody could be on this
property and not know that a 200 foot berm was missing. Id.

At the time Polgar wrote the order, it
was his understanding that Bradshaw was on site every day during the set-up of
the plant, to perform maintenance, during production, and to make sales, and
should have known of the violating condition. (Tr. 134:15-18) More importantly,
when discussing the issuance of the order, Bradshaw told Polgar that there were
no berms on the tiers because he did not have time to build them. (Tr. 131:8-14)

It is clear that Bradshaw chose not to
install berms. A reasonably prudent person familiar with the mining industry
would have installed berms or taken some other compliant measure. The order was
properly classified as high negligence.

Gravity

Potential injuries here involve head
trauma and possible ejection from the cab of the front-end loader, if it were
to overtravel and overturn. Fatalities or serious bodily injuries are
reasonably likely to result. (Tr. 139:17-23) Polgar alleged the violation affected
one person because a front-end loader is designed to be operated by a single
person. (Tr. 127:22 – 128:11) I agree that one person would be affected.

Significant and
Substantial

The first and fourth prongs of the Mathies
test have been met. The unbermed/unguarded second tier created a discrete
safety hazard that a piece of mobile equipment would overturn which could
result in serious injuries. (Tr. 147:13-20) The remaining question is whether
there was a reasonable likelihood that the hazard contributed to would result
in an injury.

Polgar issued the citation because he
felt it was an obvious violation of a mandatory health and safety standard. (Tr.
122:20 – 123:4) The lack of a berm posed a danger to anyone traveling on the
tier (roadway). Miners would be exposed to the hazard of falling over the edge.
(Id.; Tr. 126:3-7) Polgar designated the violation as reasonably likely
to cause fatal injuries because the area had been used by the front-end loader
and smaller vehicles. (Tr. 125:8-17)

The Secretary proved by a preponderance
of the evidence that the S&S designation was warranted here.

Unwarrantable Failure

Missing berms were part of the hazardous
condition complaint, and there was no evidence on site that berms had ever
existed. (Tre. 128:12-17) I find that berms were missing since at least August
11, 2012. The violating condition was obvious and extensive because there was
no berm anywhere on the 225-foot-long tier. (Tr. 1238-14; Tr. 133:1-8) The
degree of danger was high because of the likelihood of a fatality or serious
injury if a vehicle or piece of equipment were to overturn. (Tr. 133:9-17) Bradshaw
was the primary loader operator and often the sole employee working at the
mine. (Tr. 132:22-25) He and Polgar had discussed the berming requirement as
part of the May inspection. Bradshaw told Polgar that there were no berms on
the tiers because he did not have time to build them. I find that Bradshaw knew
of the berming requirement and intentionally disregarded it. Bradshaw made no effort
to abate the violating condition prior to the citation. (Tr. 132:18-21)

The Secretary proved by a preponderance
of the evidence that Stone Plus engaged in aggravated conduct constituting more
than ordinary negligence. I conclude that this was an unwarrantable failure to
comply with the regulation.

Penalty

The Secretary assessed a $2,000.00
penalty for this citation, the minimum penalty amount under 30 U.S.C. §
820(a)(3)(A). Stone Plus was highly negligent, and the violation was S&S. This
penalty will not affect the operator’s ability to continue in business. The $2,000.00
penalty the Secretary proposed is appropriate.

Order
No. 8593607

Inspector Polgar issued Order No. 8593607
to Stone Plus at its Portable #1 mine on August 14, 2012, alleging a violation
of 30 C.F.R. § 56.9300(b) pursuant to Section 105(d)(1) of the Mine Act. The
regulation states that “[b]erms or guardrails shall be at least mid-axle height
of the largest self-propelled mobile equipment which usually travels the roadway.”
30 C.F.R. § 56.9300(b). Section 56.9300 is a mandatory safety standard. The order
alleges:

The boulder, used in lieu of a berm on
the south side of the feed ramp was not maintained in a mid-axle height
position of the largest piece of equipment that travels the roadway, as
required where a drop off exists of sufficient grade or depth to cause a
vehicle to overturn or endanger persons in equipment. The feed ramp was used by
a Cat 950 FEL with a mid axle [sic.] height of 30” (Measured) and the
boulder was 12 to 15 inches (approx) above the working level of the ramp. The
ramp was 19 feet long, 11 ½ feet wide and 6 feet high (at the top, all
measured). Should a vehicle overtravel the side of the ramp and overturn[,]
permanently disabling blunt force trauma injuries would be expected. Mine
operator Neil Bradshaw engaged in aggravated conduct constituting more than
ordinary negligence in that he was aware of the standard and the violative
condition and allowed it to exist without correcting the hazard. The violation
is an unwarrantable failure to comply with a mandatory standard.

Ex.
S-15

Violation

Order No. 8593607 was issued as part of
the hazardous condition complaint inspection. It alleges that injury was unlikely,
but that if an injury did occur, there was a reasonable likelihood that any
resulting injuries would be serious. (Ex. S-15) The violation was not considered
significant and substantial, one person was affected, and it was given a high
negligence designation. Id.

Bradshaw opted to use boulders to create
a barrier on the crusher feed ramp instead of constructing a solid material
berm or guardrail. The barrier boulders were approximately 12 to 15 inches in
height. The regulation requires that a berm or barrier be at least mid-axle
height of the largest vehicle using the roadway. Mid-axle height for the
front-end loader was 30 inches. One of the boulders had toppled over, and the
barrier was less than mid-axel height in that area. (Tr. 153:12 – 154:3; Ex.
S-8M, 8N, 8O, 8P) However, even without falling over, the boulder barrier would
not have been mid-axel height. (Tr. 154:11-13; Tr. 156:12-13)

Bradshaw made an attempt, albeit
inadequate, to put a berm in place on the feed ramp. (Tr. 423:8-11) The feed
ramp is a roadway used by equipment at this mine. I conclude that Stone Plus
violated Section 56.9300(b).

Negligence

This order alleged high negligence because
Bradshaw had been cited for a feeder ramp berm violation in May, 2012, at the
same place. (Tr. 161:18 – 162:11; Tr. 166:13-17) Bradshaw knew of the standard.
Not only had he been previously cited, he made an incomplete attempt to comply
with the standard after the May violation. (Tr. 426:21 – 427:1)

Regarding mitigation, Bradshaw testified
that the displaced boulder had shifted because the grizzly on the screening
plant vibrated when operated, which caused the boulder to slide out of place. (Tr.
844:6-15) This does not constitute mitigation. Mitigation is something the
operator does affirmatively with knowledge of the potential hazard being
mitigated, that tends to reduce the likelihood of an injury to a miner. It is
clear that the violating condition was the result of a deficient half-measure
and was not mitigation.

A reasonably prudent person familiar
with the mining industry would have installed and maintained adequate berms or
barriers. The high negligence designation was warranted here because Bradshaw
affirmatively created the violating condition.

Gravity

If the front-end loader came into
contact with the displaced boulder, the boulder could have fallen down the ramp
and not prevented the loader from overtraveling the edge. (Tr. 158:8-15) Permanently
disabling injuries are foreseeable. (Tr. 160:24 – 161:13) Further, when a miner
approaches the feeder with the front-end loader, the bucket is typically raised,
which changes the loader’s center of gravity. (Tr. 159:3-18) If a front wheel
were to go off the side while the loader was in this state of disequilibrium,
the loader could overturn or the bucket could slam into the feeder. In either
instance it could endanger the driver. Id. Polgar marked this citation
as unlikely because when the operator feeds material into a hopper, he almost
always drives in the same tracks, and it is unlikely that he would get off
course. (Tr. 160:5-13) One person, the driver of the front-end loader, would be
affected. (Tr. 161:14-17)

Unwarrantable Failure

It is clear from the testimony at the
hearing and the photographical evidence that the violation was obvious. (Tr.
163:13-17; Tr. 166:6-12) The length of time the violation existed is unknown.
(Tr. 163:5-12) Additionally, since there were other boulders on the ramp, the
violation was not extensive. This violation posed a high degree of danger of permanently
disabling injury if the loader or other vehicle were to overturn. (Tr.
164:6-21) Bradshaw was on notice of this standard due to the previous citation
in May. (Tr. 163:18-22) Rather than diligently try to comply with the standard
and remedy the berm issue, Bradshaw attempted a quick and easy fix. His minimal
effort demonstrated a lack of reasonable care. There is no other evidence that Bradshaw
made any effort to effectively deal with the violating condition prior to the
citation.

The Secretary proved by a preponderance
of the evidence that Stone Plus engaged in aggravated conduct constituting of more
than ordinary negligence. This constitutes an unwarrantable failure to comply
with the standard.

Penalty

The Secretary assessed a penalty of
$2,000.00, the minimum under 30 U.S.C. § 820(a)(3)(A). Stone Plus was highly negligent.
The penalty will not affect the operator’s ability to continue in business.
Therefore, a penalty of $2,000.00 is appropriate here.

Order
No. 8593609

Inspector Polgar issued Order No. 8593609
to Stone Plus at its Portable #1 mine on August 14, 2012, alleging a violation
of 30 C.F.R. § 56.9300(a) pursuant to Section 105(d)(1) of the Mine Act. The
regulation states that “[b]erms or guardrails shall be provided and maintained
on the banks of roadways where a drop-off exists of sufficient grade or depth
to cause a vehicle to overturn or endanger persons in equipment.” 30 C.F.R. § 56.9300(a).
Section 56.9300 is a mandatory safety standard. The order alleges:

The roadway accessing the upper portion
of the mine, above the feed area was not provided with berms of mid axle [sic.]
height as required where a drop off exists of sufficient height to cause a
vehicle to overturn or endanger persons in equipment. The roadway was at an
approx. 15 to 20 percent grade and 25 feet (approx) wide. On the north side of the
roadway was loose unconsolidated shot rock dropping into the energy trough from
the previous shot below the road. Should a vehicle overtravel the edge of the
roadway and overturn, permanently disabling blunt force trauma injuries would
be expected to occur due to the irregular, unstable nature of the edge of the
roadway. Mine operator Neil Bradshaw engaged in aggravated conduct constituting
more than ordinary negligence in that he was aware of the violative condition
and made no attempt to correct the hazard. This violation is an unwarrantable
failure to comply with a mandatory standard. Standard 56.9300a was cited 3 times
in two years at mine 420587 (3 to operator, 0 to contractor).

Ex.
S-16

Violation

Order No. 8593609 was issued as part of
the hazardous condition complaint inspection. The order alleges that a permanently
disabling injury was reasonably likely, the violation was significant and
substantial, one person was affected, and there was a high degree of negligence.
(Ex. S-16) The area where this violation occurred was a roadway on a hill above
the crusher and screening plant. There was no berm or guardrail in place. (Tr.
167:23-25; Tr. 168:3-9; Ex. S-8T, S-16E) Polgar determined that it was a
roadway because there were vehicle tracks, it appeared to have been maintained,
and it was used to access the track hoe and the crusher. (Tr. 170:6-10; Tr. 171:11-19)
I agree with this assessment.

Bradshaw argued that this roadway did
not need a berm because he had constructed it with a slope such that if a
vehicle overtraveled the edge, it would not overturn. (Tr. 820:20 − 821:3) However,
even if that were true, the material on the edge was loose, unconsolidated, and
made of shot material that would not support the weight of a front-end loader. (Tr.
168:3-9; Tr. 169:17-20) As such, equipment could overturn if it went beyond the
edge. (Tr. 169:21 – 170:1) I conclude that Stone Plus violated Section
56.9300(a).

Negligence

Polgar designated the order at the level
of high negligence because Stone Plus was aware that berms were required, but
did not build any. (Tr. 174:3-13) It is important to note that anyone entering
the mine site had to use this roadway. (Tr. 176:8-16) The Respondent’s
negligence is further evidenced by the fact that Bradshaw attempted to slope
the roadway to avoid having to build a suitable berm.

Stone Plus raised the following in
mitigation: (1) It had been on site for one day and did not access the area in
question; (2) There had been no prior citations; and, (3) It had acted in good
faith in complying with MSHA standards. (Resp. Br. at 8) Mitigation is
something the operator does affirmatively with knowledge of the potential
hazard being mitigated, that tends to reduce the likelihood of an injury to a
miner. These items do not amount to mitigation. I have also considered the fact
that when the road was originally constructed, it was built with a gradual
slope. However, due to the loose, unconsolidated nature of the roadway material
at the edges, this attempt failed its purpose and was not enough to mitigate
the Respondent’s high negligence.

Gravity

Polgar designated the order as
reasonably likely to cause permanently disabling injuries because vehicles,
including the front-end loader, accessed this roadway and were exposed to the
hazard. (Tr. 171: 23 – 172:13) An injury could be permanently disabling, as
opposed to resulting in a fatality, because there was not a sharp drop-off like
the other elevated roadways. The possible injuries from overturning could be head
injuries, back injuries, neck injuries, and injuries that result in broken
bones. (Tr. 172:19-22) One person was potentially affected – the driver of the
front-end loader. (Tr. 173:25 – 174:2)

Significant and
Substantial

The first and fourth prongs of the Mathies
test have been met. The unbermed upper roadway created a discrete safety
hazard, i.e., an operator’s ability to prevent a piece of mobile equipment from
overturning was compromised, potentially resulting in injuries to the miner.
(Tr. 147:13-20) The remaining question is whether there was a reasonable
likelihood that the hazard contributed to would result in an injury.

Anyone traveling on the roadway would be
exposed to the hazard of falling over the edge. There was a reasonable likelihood
that this would cause serious injuries. There was significant front-end loader
and small vehicle traffic in the area. Additionally, the grade at the edge of
the roadway was approximately 15 to 20 percent – fairly steep. (Tr. 170:14 –
171:3) A vehicle with bad brakes (such as the front-end loader, as discussed below)
would have difficulty stopping if it overtraveled the edge. The significant and
substantial designation was warranted.

Unwarrantable
Failure

It was obvious that there was no berm on
the upper roadway. (Tr. 175:13-19) The violation was extensive; there was no
berm anywhere in the area. (Tr. 174:22-24) It is unclear how long the violating
condition existed. (Tr. 174:17-21) The degree of danger was high because of the
possibility of permanently disabling injuries. (Tr. 175:20 – 176:1) Bradshaw
was one of possibly two employees working at the mine at any given time. (Tr. 175:8-12)
Stone Plus had been cited for a berm violation in May, and was on notice that
berms were required. (Tr. 174:25 – 175:7) Bradshaw showed a serious lack of
care in failing to adequately deal with the need for a berm, particularly after
being put on notice by the May violation. There is no evidence indicating
Bradshaw made any effort to ameliorate the violation prior to the citation.

The Secretary proved by a preponderance
of the evidence that Stone Plus engaged in aggravated conduct constituting more
than ordinary negligence, and that an unwarrantable failure existed.

Penalty

The Secretary assessed the penalty for
this citation at $2,000.00, the minimum penalty amount under 30 U.S.C. §
820(a)(3)(A). Stone Plus was highly negligent, and the violation was S&S. The
proposed penalty will not affect the operator’s ability to continue in
business. A penalty of $2,000.00 is appropriate.

Order
No. 8593611

Inspector Polgar issued Order No. 8593611
to Stone Plus at its Portable #1 mine on August 15, 2012, alleging a violation
of 30 C.F.R. § 56.9301 pursuant to Section 105(d)(1) of the Mine Act. The
regulation states that “[b]erms, bumper blocks, safety hooks, or similar
impeding devices shall be provided at dumping locations where there is a hazard
of overtravel or overturning.” 30 C.F.R. § 56.9301. Section 56.9301 is a
mandatory safety standard. The order alleges:

The elevated dump site/load out area for
loading product material into trucks was not provided with berms, bumper blocks
or similar impeding devices even though there was a hazard of overtravel or
overturning. The dump site was 5 ½ feet high (measured) and 60 feet (apprx.) in
length and was accessed on an as needed basis to load trucks with the Cat 950
FEL (s/n 81J10961). Should a person operating equipment overtravel the edge of
the dump site[,] serious blunt force trauma injuries would be expected to
occur. Mine operator Neil Bradshaw engaged in aggravated conduct constituting
more than ordinary negligence in that he was aware of the violative condition
and the requirements of the standard yet made no attempt to correct the
hazardous condition. This violation is an unwarrantable failure to comply with
a mandatory standard.

Ex.
S-17

Violation

Order No. 8593611 alleges that an injury
was reasonably likely, the injury could reasonably be expected to be permanently
disabling, the violation was significant and substantial, one person was
affected, and the violation involved a high degree of negligence. (Ex. S-17) The
standard requires a berm or device to impede a vehicle from overtraveling the
edge of a dump site. (Tr. 184:13-18)

The violation area was a dump site, an
elevated pad from which a front-end loader dumped material into large trucks. It
was located on the west access road. (Tr. 180:12 – 181:2; Ex. S-8W, 8X, 8Y) An
elevated dump site is commonly used with small front-end loaders that cannot
reach over larger vehicles to load materials. (Tr. 183:19-25) The dump site was
sixty feet long and 5.5 feet above the road -- high enough for a loader to
overturn if it overtraveled. There were no berms or barriers to prevent
overtravel. (Tr. 181:12-19; Tr. 183:1-7; Tr. 184:23 -185:3) A guardrail or barrier
is required because it is common for a front-end loader to get close to the
edge of the dump site while loading trucks. (Tr. 189:3-9)

Bradshaw argued that he never used the
dump site and never loaded anything large enough to require use of the elevated
site. (Tr. 854:16 – 855:19) However, during a previous inspection, Polgar saw the
front-end loader parked on the access road to this dump site. (Tr. 181:20 – 182:2)
He also testified that the dump site was very well maintained, (Tr. 191:16-23),
and were it not being used, as Bradshaw claimed, it would not have been so well
kept. Additionally, the dump site was not barricaded off to prevent miners from
using it. (Ex. S-8W, 8X, 8Y) It is reasonable to infer from this that Bradshaw
used the dump site in this condition and violated Section 56.9301.

Negligence

To Polgar, this violation involved a high
degree of negligence because the condition was open and obvious, and the person
who would have used this load-out area most often as the primary loader
operator was Bradshaw, the owner/operator. (Tr. 187:12-20; Tr. 191:11-15) A
reasonably prudent person familiar with the mining industry would have known to
install berms or guardrails at this site.  

Gravity

If a loader drove over the edge at this site,
it could overturn. If a truck were being loaded at that moment, the loader
could hit the truck, potentially causing injury to both the loader operator and
the truck driver. (Tr. 186:2-18) Resulting injuries could be serious. (Tr. 186:19-22)
At least one person would be affected. (Tr. 187:1-4)

Significant and
Substantial

The first and fourth prongs of the Mathies
test are satisfied. The unprotected edge of the dump site created a
discrete safety hazard that a loader operator might overtravel the edge and
lose control of the vehicle, causing injury to himself or others. The remaining
question is whether there was a reasonable likelihood that the hazard would
result in an injury.

Polgar believed this violation was
significant and substantial, i.e., reasonably likely to result in permanently
disabling injuries. People used the area as needed. The dump site was well-maintained
despite there being no berm or guardrail to prevent overtravel. (Tr. 185:10-19)
The front-end loader would have to come close to the edge while loading trucks.
Tire tracks indicated that trucks had been loaded there. (Tr. 181:20 – 182:2;
Tr. 183:11-15)

Typically, when a front-end loader climbs
a loading ramp such as this, its bucket is full, making it top heavy and more
likely to tip if it runs over the edge. (Tr. 187:21 – 188:17) The extra bucket
weight also makes it more likely that the loader will tip forward into the truck
it is loading. Id. It is reasonably likely that this could result in a
serious injury. Additionally, considering the inadequate brakes and lack of a
seat belt on the front-end loader (discussed below), the likelihood of serious injury
is even greater. (Tr. 185:20 – 186:1)

The Secretary has proved by a
preponderance of the evidence that the S&S designation was warranted.

Unwarrantable Failure

The violation was obvious and extensive.
There were no berms or other barriers, and the area was well maintained. (Tr. 190:20-191:23)
Additionally, the dump site had existed for approximately three months. (Tr.
189:14-21)  The instability of a front-end loader climbing the loading ramp
with a full bucket raised to load into a truck intensifies the risk of incident
and injury. The lack of any berm or barrier further exacerbates the risk of
serious injury to the loader operator and possibly the driver of the truck being
loaded. (Tr. 192:5-15) This was an open and obvious condition. Bradshaw knew
that there was no berm or barrier at this dump site. (Tr. 192:16-21) Polgar had
also spoken to Bradshaw about the berming requirements during the May
inspection. Bradshaw acted with a serious lack of reasonable care. Other than
having built the roadway with a gradual slope, there is no evidence indicating that
Bradshaw made any effort to ameliorate the condition prior to the citation. (Tr.
191:8-10)

The Secretary has proved by a
preponderance of the evidence that Stone Plus engaged in aggravated conduct
constituting more than ordinary negligence. This violation was the result of an
unwarrantable failure to comply with the regulation.

Penalty

The Secretary assessed the penalty for
this citation at $2,000.00, the minimum penalty amount under 30 U.S.C. §
820(a)(3)(A). Stone Plus was highly negligent, and the violation was S&S. The
proposed penalty will not affect the operator’s ability to continue in
business. A penalty of $2,000.00 is appropriate.

Order
No. 8593613

Inspector Polgar issued Order No. 8593613
to Stone Plus at its Portable #1 mine on August 16, 2012, alleging a violation
of 30 C.F.R. § 56.14101(a)(1) pursuant to Section 105(d)(1) of the Mine Act. The
regulation states that “[s]elf-propelled mobile equipment shall be equipped
with a service brake system capable of stopping and holding the equipment with
its typical load on the maximum grade it travels.” 30 C.F.R. § 56.14101(a)(1). Section
56.14101 is a mandatory safety standard. The order alleges:

The service brakes on the CAT 950 FEL
(s/n 81J1096) failed to hold the equipment with its typical load on the maximum
grade it travels. Brake function was very weak and failed to hold the loader
with an empty bucket. Poor grade performance combined with the lack of
appropriate dump site restraints (citation # 8593611) and berms or guardrails (citation/order

8593603, 8953604, 8593607, and 8593609), no seat belt in the loader (cit/order

8593614) and the presence of miner(s) working on foot in the crusher/screening

plant area, make it reasonably likely that a fatal crushing/blunt force trauma
injury would occur to the loader operator or miner(s) on foot should the CAT
950 need to stop and be unable to. Mine operator Neil Bradshaw engaged in conduct
constituting more than ordinary negligence in that he was aware of service brake
defects on the loader and made no attempt to correct the hazard. This violation
is an unwarrantable failure to comply with mandatory standard.

Ex.
S-10

Violation

Order No. 8593613 was part of the
hazardous condition complaint inspection. (Tr. 45:23 – 46:3; Tr. 76:1-7) The
order alleges that a fatal injury was reasonably likely, that the violation was
significant and substantial, the negligence level was high, and one person was
affected. (Ex. S-10) This violation relates to one of MSHA's Rules to Live By
and was designated as an unwarrantable failure. (Tr. 70:14-19; Tr. 72:20-23)

The front-end loader is a self-propelled
piece of mobile equipment used to feed the screening plant, to load customers’ trucks
with product material, to build berms, and, during the setup of the plant, to
maintain the roads, and to clean the screening deck and crusher. (Tr. 60:2-8;
Tr. 62:17-23; Tr. 63:4-8) Polgar testified that while inspecting the front-end
loader, he heard an air leak coming from the brake valve. (Tr. 64:2-22)

Bradshaw suggested a pull-through test[21] to test
the brakes. (Tr. 46:15-16) Bradshaw operated the loader controls from inside
the cab while Polgar observed from the ground. Polgar noticed that instead of
pressing the brake pedal and releasing the clutch with the transmission
engaged, which would cause the engine to stall if the brakes were functioning
properly, Bradshaw allowed the clutch to remain engaged so that the loader did
not move forward. This tactic, if not detected by the inspector, would create
the impression that the brakes were holding and were in good condition. (Tr.
46:21 – 47:25; Tr. 49:4-9; Tr. 50:16-22) Polgar had Bradshaw repeat the
pull-through test. The brakes failed to hold even though the loader was empty.[22] (Tr. 49:17
– 50:6; Tr. 62:9-12) Bradshaw attempted to deceive Inspector Polgar. Stone Plus
violated Section. 56.14101(a)(1).

Negligence

Bradshaw had reason to know that the
brakes on the front-end loader were not working correctly. He moved the loader
from the feed ramp on the third tier bench, where it was on the first day of
the inspection, to the lowest level of the pit near the south end stockpiles,
by the last day of the inspection. (Tr. 51:9-20; Tr. 496:6-13; Tr. 700:19-23) He
tried to deceive the inspector while performing the pull-through test. (Tr.
68:8 -69:6)  Additionally, Polgar and Tromble spoke to Bradshaw at the previous
inspection in May about mobile equipment safety. (Tr. 72:6-10) A reasonably
prudent person familiar with the mining industry would have noticed and fixed
the inadequate brakes. Stone Plus knew of the violating condition, and was
highly negligent.

Gravity

Polgar designated this citation as potentially
fatal because a miner could be struck by the front-end loader if it was unable
to stop due to inadequate brakes. (Tr. 57:16 – 58:1) Further, inadequate brakes
could cause the loader to drive over the edge of a roadway. It could overturn, and
eject or kill the driver. (Tr. 58:2-14) The order designated one person as
being affected, the driver or a pedestrian. (Tr. 54:5-22) I agree.

Significant and Substantial

The first and fourth prongs of the Mathies
test have been met. The inadequate brakes posed a discrete safety hazard to
miners because a miner could have been run over by a front-end loader that was
unable to stop. The remaining question is whether there was a reasonable
likelihood that the hazard contributed to would result in an injury.

The violation was reasonably likely to
result in a fatal injury. (Tr. 54:23 – 55:15) The front-end loader was used at
the crushing and screening plant, and for cleanup and set up purposes. Id.
During those times, the loader driver, or anyone on the ground in its vicinity,
would be exposed to possible injury due to the inadequate brakes. Id. Polgar
testified further that if a miner had been operating the loader when he arrived
on site for his inspection, he would have issued an imminent danger order. (Tr.
55:17 – 56:8) There was a reasonable likelihood that the faulty brakes would
result in a serious injury.

The Secretary proved by a preponderance
of the evidence that the significant and substantial designation was warranted.

Unwarrantable Failure

It
is unknown how long the brakes were in the state Polgar observed, however the problem
was raised as part of the hazardous condition complaint of August 11, 2012.
(Tr. 70:25 − 71:3) The violation was obvious to anyone operating the loader.
(Tr. 71:7-23) It was also apparent to Inspector Polgar that air was leaking from
the brake valve. Anyone operating the loader would have known that the brakes
were not functioning properly. (Tr. 74:1-11) The violation poses a high degree
of danger because operating a font-end loader with inadequate brakes and no
seat belt on unprotected elevated roadways exposes the driver and others in the
vicinity to a high degree of risk of injury or death. (Tr. 74:12-25) Bradshaw knew
the brakes on the front-end loader were inadequate and intentionally attempted to
deceive Inspector Polgar. (Tr. 75:1-7) Despite knowing that the brakes were
inadequate, Bradshaw failed to tag the loader out of service or fix the
problem. (Tr. 51:21 -22:10; Tr. 65:16-22 − 67:2) Bradshaw testified that he did
not intend to deceive MSHA and thought there were two service brake pedals on
the loader. However, anyone with 50 years of experience operating front-end
loaders, like Bradshaw, would know that there were a clutch, a service brake,
and a drive pedal and would know the difference between them. (Tr. 48:21 -49:3;
Tr. 486:13-15; Tr. 859:15-17; Tr. 861:1-3; Tr. 937:18-24) Bradshaw acted with
intentional misconduct. There was no effort to remedy the violation prior to
the citation, but there was an effort to conceal it. (Tr. 73:18-20)

The
Secretary proved by a preponderance of the evidence that Stone Plus engaged in aggravated
conduct constituting of more than ordinary negligence. This violation was the
result of an unwarrantable failure to comply with the regulation.

Penalty

The Secretary assessed the penalty for
this citation at $3,000.00. This is $1,000 more than the minimum penalty amount
under 30 U.S.C. § 820(a)(3)(A). As noted above, Stone Plus was highly negligent,
and I found the violation was S&S. This penalty will not affect the
operator’s ability to continue in business. The Secretary increased the penalty
amount due to Bradshaw’s deceit and attempted concealment. The penalty is
increased to $4,000.00 due to the operator’s deceitful actions.

Order
No. 8593614

Inspector Polgar issued Order No. 8593614
to Stone Plus at its Portable #1 mine on August 16, 2012, alleging a violation
of 30 C.F.R. § 56.14130(i). The regulation states that “[s]eat belts shall be
maintained in functional condition, and replaced when necessary to assure
proper performance.” 30 C.F.R. § 56.14130(i). Section 56.14130(i) is a
mandatory safety standard. The order alleges:

The seat belt in the CAT 950 FEL (s/n
81J10961) was not maintained in a functional condition and had not been
replaced when necessary to assure proper performance. Upon inspection the seat
belt was missing both halves. The mine operator stated that the loader has
never had a seat belt installed in it[,] but the year of manufacture (1977
according to serial number) and the presence of a ROPS with a 29 CFR 1926.100
1972 compliance label indicate[s] that a seat belt was provided by the
manufacturer. Failure to provide and maintain a functional seat belt, poor
brake performance (cit/order #8593613), lack of appropriate dump site restraints
(citation # 8593611) and berms or guardrails (citation/order # 8593603,
8593604, 8593607, and 8593609) combine to create a situation where fatal
crushing/blunt force trauma injuries would be expected should a miner operating
the loader overtravel or overturn a roadway. Mine operator Neil Bradshaw
engaged in conduct constituting more than ordinary negligence in that he should
have discovered the obvious lack of a seat belt and corrected the hazardous
condition instead of allowing it to continue for a period of two years without
addressing it. This is an unwarrantable failure to comply with a mandatory
safety standard. This violation is an unwarrantable failure to comply with a
mandatory standard.

Ex.
S-11

Violation

Order No. 8593614 alleges that injury was
reasonably likely, could reasonably result in fatal injuries, was significant
and substantial, the negligence level was high, and one person was affected. Id.
The loader was originally equipped with a seat belt from the manufacturer.[23] However,
Polgar found that the seat belt was missing. (Tr. 78:6-12; Tr. 91:18 – 92:5) There
were two attachment studs where the seat belt should have been mounted. (Tr.
78:17 – 79:8; Tr. 80:19 – 81:8) Stone Plus violated Section 56.14130(i).

Negligence

Polgar designated the citation as high
negligence because the operator had to know of the violation. Anyone driving
the loader had to know the seat belt was missing. (Tr. 86:5-20) Bradshaw
testified that the loader had not had a seat belt for approximately two years;
it never had a seat belt. (Tr. 86:1-4; Tr. 937:25 − 938:15) A reasonably
prudent person familiar with the mining industry would have noticed the missing
seat belt and replaced it. I find that Stone Plus knew of the violative
condition, and the high negligence rating was justified.

Gravity

A driver can be ejected from the cab and
severely injured without a working seat belt. (Tr. 57:6-13; 92:12 – 93:7) The
inspector designated this violation as affecting one person because there was
only one seat in the loader. (Tr. 85:5-9) I agree.

Significant and Substantial

The first and fourth prongs of the Mathies
test have been met. The missing seat belt created the discrete safety
hazard that a loader driver could be subjected to ejection and/or injury by
blunt force trauma. The remaining question is whether there was a reasonable
likelihood that the hazard contributed to would result in an injury.

It was reasonably likely that the
missing seat belt could result in an injury. If the loader overtraveled one of
the elevated roadways and overturned, the occupant could be ejected from the
cab. (Tr. 84:14-20) The loader had no seat belt, inadequate brakes, and there
were no berms on the tiers, dump site, or roadway. This very dangerous
situation could reasonably result in a fatality. (Tr. 83:21 – 84:11) The
Secretary proved by a preponderance of the evidence that the significant and
substantial designation was warranted here.

Unwarrantable Failure

The violation was extensive and obvious.
The seat belt wasn't just broken; it was missing. (Tr. 87:7-10; Tr. 88:9-13) According
to Bradshaw, the violating condition had existed approximately two years. The front-end
loader never had a seat belt. (Tr. 86:1-4; Tr. 937:25 − 938:15) There was a
high degree of danger because the protection that seat belts provide against
ejection from the cab and possible blunt force trauma inside the cab, in the
event of an accident is lost if the vehicle has no seat belt. (Tr. 88:14 – 89:1)
It is implausible that a person who has operated front-end loaders for
approximately fifty years (Bradshaw) could operate this loader without knowing the
seat belt is missing. I find that Bradshaw knew the seat belt was missing for
approximately two years and conclude that he acted with intentional misconduct
by not replacing it.  Bradshaw made no effort to remedy the violating condition
prior to the issuance of the citation. (Tr. 87:22-25)

The
Secretary proved by a preponderance of the evidence that Stone Plus engaged in aggravated
conduct constituting of more than ordinary negligence. This constitutes an
unwarrantable failure.

Penalty

The Secretary assessed the penalty for
this citation at $2,000.00, the minimum penalty amount under 30 U.S.C. §
820(a)(3)(A). Stone Plus was highly negligent and the violation was S&S. This
penalty will not affect the operator’s ability to continue in business. A
penalty of $2,000.00 is appropriate.

Order No. 8593617  

Inspector Polgar issued Order No. 8593617
to Stone Plus at its Portable #1 mine on August 16, 2012, alleging a violation
of 30 C.F.R. § 56.14100(a) pursuant to Section 105(d)(1) of the Mine Act. The
regulation states that “[s]elf-propelled mobile equipment to be used during a
shift shall be inspected by the equipment operator before being placed in
operation on that shift.” 30 C.F.R. § 56.14100(a). Section 56.14100(a) is a
mandatory safety standard. The order alleges:

The mine operator failed to ensure that
self propelled [sic.] mobile equipment was being inspected for safety
defects prior to it being placed into operation. The nature of defects observed
and the severity of those defects, as well as the operators own admission
indicate that no safety defect exam what so ever [sic.] was being
performed. The failure to ensure examinations are being conducted can lead to
serious[,] if not fatal[,] injuries. Neil Bradshaw, mine operator, engaged in
conduct constituting more than ordinary negligence in that he was aware of the
requirement to conduct preoperational exams and he did not ensure they (exams)
were being conducted. This is an unwarrantable failure to comply with a
mandatory safety standard.

Ex.
S-12

Violation

Order No. 8593617 alleged that a fatal
injury was reasonably likely, the violation was significant and substantial,
the negligence level was high, and one person was affected. Id. Polgar issued
the order because the operator failed to inspect the front-end loader prior to
placing it into operation. (Tr. 93:16-19; Tr. 94:1-4) The operator is also
required to make a record of any defects, take the equipment out of service
until defects are corrected, and correct the defects in a timely manner. (Tr.
97:21 – 98:5)

Mine operators are required to perform a
pre-shift exam of mobile equipment prior to each shift. The operator must inspect
all safety equipment, i.e. brakes and seat belt, to ensure everything is
functional and the equipment is safe to run. (Tr. 99:10-15) Due to the obvious
nature of the seat belt issue (missing) and the defective brakes, it is obvious
that no preoperational exam was done. (Tr. 101:16 – 102:1) Additionally, Bradshaw
admitted that no preoperational exam was done. (Tr. 94:16 – 95:1) As an
example, a preoperational exam should have been done before the front-end
loader was moved from the upper tier to the lower tier of the mine. (Tr. 107:2-9)
Stone Plus violated Section 56.14100(a).

Negligence

It was Bradshaw’s responsibility, as
owner and operator of the mine and principal operator of the front-end loader, to
perform preoperational exams. (Tr. 102:14-18; 107:10-20)  Bradshaw knew that a
preoperational exam was required. At the previous inspection in May, 2012, the
inspectors and Bradshaw spoke about the preoperational exam requirement, and
Bradshaw was given a safety checklist with pertinent standards that need to be
followed. (Tr. 95:5-21) Bradshaw admitted in May that there no preoperational
exams had been performed. It is evident that they were still not being
performed when this inspection took place, months later. (Tr. 99:20-25; Tr.
101:6-11)

When Polgar asked Bradshaw to produce
examination records during the August inspection, Bradshaw opened his briefcase.
Polgar looked inside and saw the checklist that he had given Bradshaw in May on
top of the other documents. Bradshaw was on notice and was aware of the
preoperational exam requirement. (Tr. 107:25 – 108:20) Bradshaw also admitted
he had no preoperational exam records. He told Inspector Polgar he knew he
should be performing them. (Tr. 96:13-16; Tr. 98:7-13; S-6) Polgar assigned
high negligence to this order because the owner was responsible for performing
the preoperational exams, knew that they were required, yet failed to do them. (Tr.
100:18-25)

A reasonably prudent person familiar
with the mining industry would have inspected the front-end loader before
operating it. It is clear that Stone Plus was highly negligent in neglecting
this duty to examine.

Gravity

Here, the fatality designation related to
the seat belt and brake defects on the front-end loader. (Tr. 103:14-16; Tr. 106:4-9)
The driver or a miner on foot in the area would be the only person affected.
(Tr. 97:4-11; Tr. 98:15-20; Tr. 106:10-13)

Significant and Substantial

The first and fourth prongs of the Mathies
test have been met. The lack of preoperational exams created the discrete
safety hazard of the missing seatbelt and inadequate brakes. These defects could
result in injuries to a miner. The remaining question is whether there was a
reasonable likelihood that the hazard contributed to would result in an injury.

Polgar considered the violation S&S
and reasonably likely to result in fatal injuries. When assessing this
violation, Polgar looked at the other related violations. He testified that the
purpose of the preoperational exam is to ensure that equipment is checked for
defects and is safe for miners to use. (Tr. 105:15-22) Here, the operator failed
to do a preoperational exam which resulted in critical safety measures being
overlooked. (Tr. 104:9-20) Polgar believed that if a preoperational exam had
been performed, the brake issue and the missing seat belts would have been
caught immediately. (Tr. 69:16 – 70:3; Tr. 104:24 – 105:2)

Bradshaw admitted that he had operated
the equipment and produced commercial product. (Tr. 96:20-21; Ex. S-6) Additionally,
there was evidence that the front-end loader had been used in various locations
throughout the mine. For example, there were production piles on the ground,
there were loader tracks in various areas of the mine, and the loader had been
moved from where it was on the first day of inspection to where it was on the
last day of inspection. (Tr. 100:1-12) Most importantly, despite the inadequate
brakes and missing seat belt, the loader had never been taken out of service. (Tr.
105:23-25) I agree that there was a reasonable likelihood that this was a hazard
that could result in an injury. The S&S designation was warranted.

Unwarrantable Failure

The violation was obvious; it is
something that should be done every shift, or every time a piece of equipment
is to be placed into service. (Tr. 103:4-8) Also, the defects were extensive
enough to be obvious. (Tr. 101:13-15) This violation existed since at least
May, 2012. The seat belt and brake defects in the front-end loader posed a high
degree of danger. (Tr. 103:9-13) It is the operator’s responsibility to complete
the preoperational exam. Bradshaw failed to do so and admitted that he knew he
should have been performing the exams. (Tr. 103:22 – 104:5; Tr. 104:7-8) The MSHA
checklist in his briefcase was further evidence that he knew of the preoperational
exam requirement but ignored it. (Tr. 108:22 – 109:4) Bradshaw was on notice at
least since May when he was given a copy of the MSHA checklist. (Tr. 102:2-10) I
find that Bradshaw’s omissions constituted intentional misconduct. Nothing was done
to ameliorate the violation. (Tr. 102:11-13)

The
Secretary proved by a preponderance of the evidence that Stone Plus engaged in aggravated
conduct constituting more than ordinary negligence. This violation constituted
an unwarrantable failure to comply with the standard.

Penalty

The Secretary assessed the penalty for
this citation at $2,000.00, the minimum penalty under 30 U.S.C. § 820(a)(3)(A).
As noted above, Stone Plus was highly negligent and the violation was S&S. This
penalty will not affect the operator’s ability to continue in business. I
assess a penalty of $2,000.00, as proposed by the Secretary.

Order No. 8593605

Inspector Polgar issued Order No. 8593605
to Stone Plus at its Portable #1 mine on August 14, 2012, alleging a violation
of 30 C.F.R. § 56.14112(b) pursuant to Section 105(d)(1) of the Mine Act. The
regulation states that “[g]uards shall be securely in place while machinery is
being operated, except when testing or making adjustments which cannot be
performed without removal of the guard.” 30 C.F.R. § 56.14112(b). Section
56.14112(b) is a mandatory safety standard. The order alleges:

The tail pulley guard on the 26 inch
wide east discharge belt of the Extec screen plant (s/n 5830) was not in place
as required to prevent persons from contacting moving machine parts. The guard
had been removed and was located on the ground approx. 100 feet away from the
tail pulley. The smooth drum tail pulley was 48 inches AGL and adjacent to a
walkway/travelway. Should a miner come into contact with a rotating tail pulley
serious amputation/dismemberment injuries would be expected. Mine operator Neil
Bradshaw engaged in aggravated conduct constituting more than ordinary
negligence in that he was aware of the violative condition and made no attempt
to correct the hazardous condition. This violation is an unwarrantable failure
to comply with a mandatory standard.

Ex.
S-18

Violation

Order No. 8593605 was issued as part of
the hazardous condition complaint inspection. (Tr. 405:1-5) The order alleges
that an injury was reasonably likely, could reasonably result in permanently
disabling injuries, the violation was significant and substantial, the
negligence level was high, and one person was affected. (Ex. S-18) Polgar
testified that the standard for guarding moving machine parts requires that if
the machine part is over seven feet above ground level (AGL), it is considered
guarded “by location,” but here, the screening plant tail pulley was only 48
inches AGL. (Tr. 196:1-8) Therefore, the tail pulley should have been guarded
if the machine was in use. In this case, the tail pulley guard had been removed
to a location approximately 100 feet from the screening plant, and was on a
completely different tier. (Tr. 193:24 – 194:22; Tr. 195:7-12)

Bradshaw testified that he never
operated the screening plant without the tail pulley guard in place, but there
is credible evidence to the contrary. (Tr. 831:5-9; Tr. 834:21-23) In addition
to the hazardous condition complaint claim that the screening plant had been
used, Bradshaw admitted he ran the machine for a couple of hours. (Tr. 210:21-24;
Tr. 410:14 – 411:3) There was also physical evidence that Polgar relied on at
the time he inspected the mine to determine the machine was operated, including
the fact that there were discharge piles under the belts and rocks on the frame.
(Tr. 411:5-16; Tr. 727:21-25)

There is an exception to the rule: a
guard can be removed during testing or for adjustments if such actions cannot
be performed without removing the guard. (Tr. 210:25 – 211:8) However, the
evidence here shows that the equipment was not being tested or adjusted. There
were rocks located near the adjustment mechanism that would have to be removed
before any adjustment was done. (Tr. 211:9 – 212:16; Tr. 295:16 – 296:9; Ex.
S-9A, 9F, 18D) Additionally, as a general rule, the tail pulley guard does not
need to be removed to adjust the machine. (Tr. 212:22-25) The guard was
removed, and the screening plant should have been locked out, tagged out, or
blocked against motion. (Tr. 609:12 – 610:7; Tr. 547:15-20) I find that Stone
Plus violated Section 56.14112(b).

Negligence

Polgar rated the negligence involved in
this violation as “high” because the pulley guard had been in place during the
previous inspection, it had been subsequently removed, and the screening plant operated
after its removal. (Tr. 204:20-25) Stone Plus was on notice of the guarding
requirement because Polgar and Bradshaw discussed it at the previous inspection
months before, and had even reviewed an MSHA power point presentation on the
subject. (Tr. 208:3-11) Additionally, Bradshaw admitted that the tail pulley guard
had been removed and excused it because it was only going to run for a couple of
hours. (Tr. 352:8-13)

A reasonably prudent person familiar
with the mining industry would have assured that the tail pulley on this
equipment was properly guarded. It is clear that Stone Plus knew of the
violative condition, failed to comply with the relevant standard, and was
highly negligent.

Gravity

This type of pulley could actually pull a
miner into it. (Tr. 203:25 – 204:13) The resulting injuries could be very
serious. Id. Polgar believed that the violation affected one person
because under normal operating circumstances, only one person would be near the
tail pulley at any time. (Tr. 204:14-19) I agree.

Significant and Substantial

The first and fourth prongs of the Mathies
test are satisfied. The lack of a tail pulley guard created a hazard that a
miner could become entangled in the pulley assembly and suffer serious injury. The
remaining question is whether there was a reasonable likelihood that the missing
guard hazard would result in an injury.

The
screening plant was adjacent to a walkway, which was narrow, not compacted, and
sloped, increasing the likelihood that a person could slip and fall onto the
moving, unguarded tail pulley. (Tr. 196:9-14; Tr. 277:12 – 278:3; Ex. 8-I) The
emergency stop button for the conveyor belt was located four or five feet from
the belt. (Tr. 197:6-9) A miner could slip and fall on his way to the stop
button. A conveyor belt such as this could have considerable spillage near the
tail pulley, which would require shoveling. If a miner needed a hand hold to stand
up while shoveling, his hand would be mere inches from the uncovered pulley at
best. He could easily inadvertently put his hand on the exposed tail pulley. (Tr.
199:2-19; Tr. 201:12 – 202:6)

The
Secretary has shown that there was a reasonable likelihood that the missing
guard hazard would result in an injury. The S&S designation was warranted.  

Unwarrantable Failure

Bradshaw admitted that the violation
existed for a couple of hours -- the length of time the mine was producing. (Tr.
205:6-25) The violation was obvious. The guarding was missing, had been moved
100 feet away, and was on a different tier. (Tr. 209:6-11) The violation was
extensive because there was no tail pulley on the machine and nothing had been
done to minimize the danger. The missing tail pulley guard posed a high degree
of danger. Entanglement accidents are well known in the industry and are
unfortunately extremely grievous. (Tr. 209:21 – 210:2) Bradshaw was the owner
and operator of Stone Plus, and was on site during all phases of the mining
cycle. He was aware of the missing guarding, (Tr. 208:25 – 209:5) but he ran
the screener nonetheless. Moreover, the inspectors had told Bradshaw about the
guarding requirements the previous May. Bradshaw acted with intentional
misconduct. No effort was made to minimize the violation. (Tr. 208:20-24)

The
Secretary proved by a preponderance of the evidence that Stone Plus engaged in
aggravated conduct constituting of more than ordinary negligence. This
constitutes an unwarrantable failure.

Penalty

The Secretary assessed the penalty for
this citation at $2,000.00, the minimum penalty amount under 30 U.S.C. §
820(a)(3)(A). Stone Plus was highly negligent, and the violation was significant
and substantial. This penalty will not affect the operator’s ability to
continue in business. I assess a penalty of $2,000.00 as proposed by the
Secretary.

Order
No. 8593606

Inspector Polgar issued Order No. 8593606
to Stone Plus at its Portable #1 mine on August 14, 2012, alleging a violation
of 30 C.F.R. § 56.14107(a) pursuant to Section 105(d)(1) of the Mine Act. The
regulation states that “[m]oving machine parts shall be guarded to protect
persons from contacting gears, sprockets, chains, drive, head, tail, and takeup
pulleys, flywheels, couplings, shafts, fan blades, and similar moving parts
that can cause injury.” 30 C.F.R. § 56.14107(a). Section 56.14107(a) is a
mandatory safety standard. The order alleges:

The return roller on the 36 inch wide
overhead belt of the Extec screening plant (s/n 5830) was not guarded as
required to prevent persons from contacting moving parts. The roller was located
adjacent to a travelway used to access the controls of the screening plant. The
roller was 51 inches (measured) AGL, with the frame of the plant directly below
the roller (approx. 30 inches distance) being used as a tool/grease gun storage
area. Should a miner come into contact with a rotating return roller
entanglement/suffocation injuries would be expected. Mine operator Neil
Bradshaw engaged in aggravated conduct constituting more than ordinary
negligence in that he was aware of the guarding standards and the violative
condition yet made no attempt to correct the hazardous condition. This
violation is an unwarrantable failure to comply with a mandatory standard.

Ex.
S-19

Violation

Order No. 8593606 alleges the injury was
reasonably likely, could reasonably result in fatal injuries, was significant
and substantial, the negligence level was high, and one person was affected.
(Ex. S-19) The standard states that moving machine parts shall be guarded. (Tr.
216:2-4) However, there was no evidence that there was a guard over the return
roller at any time. (Tr. 220:7-13; Ex. S-8L, 9D, 9E, 9M) The return roller was less
than seven feet off the ground and needed to be guarded. (Tr. 217:22 – 218:1)

Bradshaw told Polgar that the screening
plant had been operated for only a couple of hours. However, the amount of
material on the ground and in the production piles under the discharge
conveyors was consistent with a longer period of operation. (Tr. 36:8-16) Polgar
concluded that there had never been a guard over the return roller. (Tr.
222:3-10)  

Bradshaw argued that he never operated
the belt without guarding the roller, and that he used plywood as a guard,
however, in light of the amount of material left around the equipment, his
testimony on this point is not credible. (Tr. 835:17-25; Tr. 836:7-15) I agree
with the Inspector that Stone Plus violated 56.14107(a).

Negligence

Polgar assigned high negligence to this
order because it was an open and obvious condition, and he had previously
discussed the guarding requirements with Bradshaw. (Tr. 221:20 – 222:20) A
reasonably prudent person familiar with the mining industry would have guarded
the return roller here. Stone Plus knew of the violative condition and failed
to do anything to comply with the guarding regulation. This constitutes high
negligence.

Gravity

Unguarded return rollers have caused
fatalities before. (Tr. 220:14 - 221:2) If a loose article of clothing or a
hand were to come into contact with a return roller, the rotary motion of the
roller combined with the belt traveling over it could entangle a miner or his
clothing. (Tr. 217:3-21) A miner’s entangled clothing could cause suffocation
or strangulation, or it could pull a part or all of his body into the machinery.
(Tr. 217:3-21; Tr. 221:3-12) Polgar believed that one person would potentially
be affected because the prospect of more than one person getting caught in the
rollers is very remote. (Tr. 221:13-18)

Significant and Substantial

The first and fourth prongs of the Mathies
test have been met. The lack of return roller guard created a discrete entanglement
hazard which could result in serious injury. The remaining question is whether
there was a reasonable likelihood that the hazard contributed to would result
in an injury.

The unguarded return roller was located
next to a travelway used to access the screening plant controls. (Tr. 218:2-5) It
is also close to a tool/grease storage area. The photographic evidence shows a
grease gun and a bucket of tools below the unguarded return roller. (Tr. 218:25
– 219:8; Tr. 278: 25 – 279:6; Ex. S-8C, 8K, 9D) It is feasible that a miner could
reach into the danger area to get the grease gun or tools -- only 30 inches
from the return roller. (Tr. 219:9-21) And, if the machine were running, his
hand could get caught in the unguarded return roller.

Polgar considered this violation reasonably
likely to cause a fatality and S&S. Any miner reaching for the bucket of
tools or the grease gun would be exposed to the unguarded roller. (Tr. 220:18 –
221:2) There is a reasonably likelihood that this could result in a serious
injury. The S&S designation was warranted.

Unwarrantable Failure

Polgar testified that the lack of
guarding at the return roller was an obvious violation, particularly in light
of the fact that there never had been a guard over the return roller. (Tr. 223:4-5;
Tr. 220:7-13) This hazard poses a high degree of danger. An entanglement could
result in serious injury or death. (Tr. 223:6-11) Bradshaw was on site daily, participating
in every facet of mining operations. (Tr. 222:24 – 223:3) He knew the return roller
should have been guarded since at least May, and was on site to know that there
was no guarding in place. (Tr. 223:12-18) Bradshaw acted with intentional
misconduct. No effort made to ameliorate the violation. (Tr. 222:21-23)

The
Secretary proved by a preponderance of the evidence that Stone Plus engaged in
aggravated conduct, and that its failure to provide guarding for the return
roller constituted an unwarrantable failure.

Penalty

The Secretary assessed a $2,000.00 penalty
for this violation, the minimum penalty allowed under 30 U.S.C. § 820(a)(3)(A).
This penalty amount will not affect the operator’s ability to continue in
business. I concur with the Secretary and assess a penalty of $2,000.00.

Order
No. 8593608

Inspector Polgar issued Order No. 8593608
to Stone Plus at its Portable #1 mine on August 14, 2012, alleging a violation
of 30 C.F.R. § 56.14107(a) pursuant to Section 105(d)(1) of the Mine Act. The
regulation states that “[m]oving machine parts shall be guarded to protect
persons from contacting gears, sprockets, chains, drive, head, tail, and takeup
pulleys, flywheels, couplings, shafts, fan blades, and similar moving parts
that can cause injury.” 30 C.F.R. § 56.14107(a). Section 56.14107(a) is a
mandatory safety standard. The order alleges:

The flywheel on the idle side of the Jaw
crusher was not provided with a guard as required to prevent persons from
contacting moving machine parts. The flywheel was 5 foot 9 inches above a
travelway and approx. 48 inches in diameter. Should a miner come into contact
with a rotating machine part, such as a flywheel, permanently disabling blunt
force trauma/laceration injury would be expected. Mine operator Neil Bradshaw
engaged in aggravated conduct constituting more than ordinary negligence in
that he was aware of the violative condition and made no attempt to correct the
hazardous condition. This violation is an unwarrantable failure to comply with
a mandatory standard. Standard 56.14107a was cited 1 time in two years at mine
4202587 (1 to the mine, 0 to a contractor).

Ex.
S-20

Violation

Order No. 8593608 alleges that an injury
was reasonably likely; it could reasonably result in permanently disabling injuries;
it was significant and substantial; the negligence level was high; and, one
person was potentially affected. Id. The flywheel[24] on the jaw
crusher was unguarded and situated five feet and nine inches above the ground.
(Tr. 225:11-25; Ex. S-20E, 8Q, 9O, 9P) Bradshaw admitted that there was no guard
in place and explained that a permanent guard was being made. (Tr. 848:1-7)

There were discharge material piles below
the crusher, made by Bradshaw on August 11, 2012. (Tr. 433:23 -434:7; Tr. 910:16-21;
Tr. 912:20-24) There is no question that the crusher had been operated with an
unguarded flywheel. Thus, Stone Plus violated Section 56.14107(a).

Negligence

The violation involved high negligence
because in May, Polgar and Tromble spoke with Bradshaw about the flywheel on
the jaw crusher specifically. (Tr. 234:5 -235:17) At that time, they measured
the distance from the ground to the flywheel and determined that it needed to
be guarded. Id. They also advised Bradshaw that if the machine was
moved, which it was, the height above ground level would have to be measured
again, and the flywheel would have to be guarded if it was below the minimum
height. Id. Polgar and Tromble both informed Bradshaw of the guarding
requirement. (Tr. 236:4-8) A reasonably prudent person familiar with the mining
industry would have guarded the flywheel. It is clear that Stone Plus knew of
the violative condition, failed to comply with the regulation, and was therefore
highly negligent.

Gravity

If a miner were to come in contact with the
inside part of the flywheel, serious injuries such as amputations or blunt
force trauma could occur. (Tr. 233:13-24) Lacerations were also likely if a
miner even touched the outside of the moving flywheel. Id. Polgar believed
one person would be potentially affected. (Tr. 233:25 – 234:4) I agree and find
accordingly.

Significant and Substantial

The first and fourth prongs of the Mathies
test have been satisfied. The lack of flywheel guard created a discrete
safety hazard of blunt force trauma. The remaining question is whether there
was a reasonable likelihood that the hazard would result in an injury.

The flywheel was located directly above
a well-worn path consisting of unconsolidated and rocky material. (Tr.
229:8-17; Ex. S-8R, 8S, 9Q) If a miner were to lose his footing walking near
the unguarded flywheel, and reach for something to steady himself, a serious
injury could occur. Id. If a miner were to trip, he could also hit his
head on the flywheel. Id.

The citation alleged that it was
reasonably likely that a permanently disabling injury would occur. This S&S
requirement arises from the proximity of the flywheel to the travelway, the
shortest path between the jaw crusher and the loader or the screening plant. (Tr.
232:11-24) This proximity increases the likelihood that miners would walk near
the unguarded flywheel.

Bradshaw
testified that he did not operate the crusher without the flywheel guard, (Tr. 847:7-9),
but I give this assertion no credibility.  The S&S designation was
warranted.

Unwarrantable Failure

Despite having the fact of the missing
flywheel guard and its danger brought to his attention in May (Tr. 235:19-25;
Tr. 236:1-2), Bradshaw did nothing to come into compliance. This violation was
obvious. Moreover, there was a machine component called a “shiv” on the
opposite side of the crusher, which looked essentially the same as the
flywheel. It was guarded. (Tr. 236:18-22) An unguarded flywheel next to a
travelway poses a high degree of danger. (Tr. 236:25 - 237:1) Bradshaw was at
the previous inspection, was on site operating every day the plant was open,
and was well aware of the violative condition. (Tr. 236:12-17; Tr. 237:4-7) Stone
Plus engaged in intentional misconduct. There was no effort made to ameliorate the
violation. (Tr. 236:9-11)

The
Secretary proved by a preponderance of the evidence that Stone Plus engaged in
aggravated conduct which constituted an unwarrantable failure to comply with
the regulation.

Penalty

The Secretary assessed the penalty for
this citation at $2,000.00, the minimum penalty under 30 U.S.C. § 820(a)(3)(A).
The penalty will not affect the operator’s ability to continue in business. The
recommended $2,000.00 penalty is affirmed.

Order
No. 8593610

Inspector Polgar issued Order No. 8593610
to Stone Plus at its Portable #1 mine on August 14, 2012, alleging a violation
of 30 C.F.R. § 56.14107(a) pursuant to Section 105(d)(1) of the Mine Act. The
regulation states that “[m]oving machine parts shall be guarded to protect
persons from contacting gears, sprockets, chains, drive, head, tail, and takeup
pulleys, flywheels, couplings, shafts, fan blades, and similar moving parts
that can cause injury.” 30 C.F.R. § 56.14107(a). Section 56.14107(a) is a
mandatory safety standard. The order alleges:

The return rollers (2) on the 46 inch
wide Jaw discharge conveyor were not guarded as required to prevent persons
from contacting moving machine parts. The bottom roller was 29 inches
(measured) AGL and adjacent to a travelway used on an as needed basis. The
unguarded rollers were open and obvious upon inspection. Should a miner come
into contact with an unguarded, rotating roller entanglement/suffocation
injuries would be expected. Mine operator Neil Bradshaw engaged in aggravated
conduct constituting more than ordinary negligence in that he was aware of the
standards regarding return roller guards and made no attempt to correct the
violative condition. The violation is an unwarrantable failure to comply with a
mandatory standard. Standard 56.14107a was cited 2 times in two years at mine
4202587 (2 to the operator, 0 to a contractor).

Ex.
S-21

Violation

Order No. 8593610 was part of the
hazardous condition complaint inspection. (Tr. 243:10-17) The order alleges that
an injury was reasonably likely; it could reasonably be fatal; the violation was
significant and substantial; the negligence level was high; and, one person was
potentially affected. (Ex. S-21) This order pertains to return rollers on the
crusher (the jaw), whereas the order discussed above pertains to the return
rollers on the screening plant. (Tr. 239:12-17) Here, there were two unguarded
rollers,[25]
and the roller cited in the order was the lower of the two, at 29 inches above
ground level. (Tr. 239:18-21; Ex. S-8U, 8V) Polgar and Tromble believed the
machine was beyond the set-up leveling stage and had already been used in
production. (Tr. 251:20-23; Tr. 252:5-7; Ex. S-8U)

Bradshaw claimed that there were plywood
guards covering the rollers on August 11, 2012, when he used the equipment, which
were removed at the end of the day. (Tr. 927:25 -928:20) However, during
Bradshaw's deposition, he testified that the plywood in question had never been
on the machine, it was located on the ground near the machine, and he only used
some of the plywood around the bottom of the machine to prevent rocks from
going under it. (Tr. 932:19 – 933:23; Tr. 936:6-10) Polgar agreed that the
plywood was there only to keep rocks from rolling under the conveyor. (Tr. 241:24
– 242:4) Additionally, the plywood depicted in the photo exhibit (S-8U) does
not satisfy the regulation requirement because it does not prevent a person
from contacting the roller. (Tr. 241:13-23)  I conclude that Stone Plus
violated Section 56.14107(a).

Negligence

Order No. 8593610 was assigned high
negligence because it was an open and obvious condition, Polgar and Bradshaw spoke
extensively about guarding in the previous inspection in May, and Bradshaw was
aware of the guarding requirements. (Tr. 246:22 – 247:3) Indeed, despite
discussing the guarding requirements, Polgar found no evidence that the rollers
had ever been guarded. (Tr. 247 5-15) There were no guard brackets on the
machinery until the order was abated. Id.

A reasonably prudent person familiar
with the mining industry would have guarded the return rollers here. Stone Plus
knew of the violative condition and failed to install appropriate guarding. This
constitutes high negligence.

Gravity

Polgar testified about a likely
scenario. It is reasonably likely that a miner’s shovel being used to clean up
the area near the unguarded return roller could get caught in the return roller.
The miner could be pulled into contact with the roller, which Polgar testified,
has happened before. (Tr. 245:22 – 246:3) Also, if a piece of clothing or a
hand were to get caught in the roller, it could lead to serious entanglement or
suffocation injuries. (Tr. 238:14-23; Tr. 243:22 − 244: 4) It is reasonable
that one person could be affected, as alleged.

Significant and Substantial

The first and fourth prongs of the Mathies
test have been met. The missing return roller guard posed a discrete safety
hazard of entanglement and resulting injuries. The remaining question is whether
there was a reasonable likelihood that the hazard would result in an injury.

Crushers and screen decks spill a lot of
material during operation, so a miner would frequently be in the area near the
unguarded rollers to shovel the spillage. (Tr. 240:9-18) Additionally, the
lower unguarded roller was about six feet from the jaw crusher controls. An
operator would have to pass by the unguarded roller to get to them. (Tr. 240:23
– 241:1; Tr. 252:8-10) It is reasonably likely that a miner could come into
contact with the roller while checking on the equipment, cleaning up spillage,
operating the controls adjacent to the roller, or merely walking next to the equipment.
(Tr. 244:9-23) Such a hazard is, in turn, reasonably likely to result in a
serious injury. The S&S designation was warranted here.

Unwarrantable Failure

Polgar found no evidence that the roller
had ever been guarded. To abate the order, guarding brackets had to be welded
onto the machine. (Tr. 247:5-15) The equipment had not changed since May. Id.
The condition was extensive -- there were two rollers on the same conveyor belt,
and neither of them had any guarding since at least May. (Tr. 249:4-7) This was
an open and obvious condition that anyone could see. (Tr. 249:19 – 250:3) The violation
created a high degree of danger. Accidents involving unguarded return rollers
have resulted in fatalities in the past. Here, there danger was high. There
were two exposed return rollers on a single conveyor belt located next to a
travelway. (Tr. 250:6-12) Like the previous unguarded roller citation, Bradshaw
was on notice since the previous inspection in May. (Tr. 222:24 – 223: 18; Tr. 249:8-15)
Bradshaw was regularly on site, participating in every facet of mining. He knew
the rollers should have been guarded and were not. (Tr. 250:15-18) Bradshaw
acted with intentional misconduct. No effort was made to ameliorate the violation.
(Tr. 249:16-18)

The
Secretary proved by a preponderance of the evidence that Stone Plus engaged in
aggravated conduct. The unwarrantable failure designation was justified.

Penalty

The Secretary assessed the penalty for
this citation at $2,000.00, the minimum penalty under 30 U.S.C. § 820(a)(3)(A).
Stone Plus was highly negligent, and the violation was S&S. This penalty
will not affect the operator’s ability to continue in business. I assess a
penalty of $2,000.00, as recommended.

Order
No. 8593616

Inspector Polgar issued Order No. 8593616
to Stone Plus at its Portable #1 mine on August 16, 2012, alleging a violation
of 30 C.F.R. § 56.18002(a) pursuant to Section 105(d)(1) of the Mine Act. The
regulation states that “[a] competent person designated by the operator shall
examine each working place at least once each shift for conditions which may
adversely affect safety or health. The operator shall promptly initiate
appropriate action to correct such conditions.” 30 C.F.R. § 18002(a). Section
56.18002(a) is a mandatory safety standard. The order alleges:

The mine operator failed to ensure that
a daily work place exam was being conducted to correctly identify the hazards..
[sic.] The number of hazards observed and the severity of those hazards,
as well as the operators own admission indicate that no exam what so ever [sic.]
was being done. The failure to ensure workplace exams are being conducted can
lead to serious[,] if not fatal[,] injuries. Neil Bradshaw, mine operator,
engaged in conduct constituting more than ordinary negligence in that he was
aware of the requirement to conduct daily work place exams and he did not
ensure the exams were being conducted. This is an unwarrantable failure to
comply with a mandatory safety standard. […]

Ex.
S-22

Violation

The order alleges a reasonably likely injury;
the injury could reasonably be fatal; the violation was significant and
substantial; the negligence level was high; and, one person was potentially affected.
Id. The mine operator is responsible for ensuring that an examination of
each working area around the mine was completed on a daily basis. Given the
number of violations identified by Polgar and Tromble during their inspection,
it was obvious to Polgar that workplace examinations were not being conducted. (Tr.
260:19-24) All of the violations discussed above could have been identified in
an competent workplace examination. (Tr. 261:3-10)

Significantly, Bradshaw admitted he had
not conducted workplace examinations. (Tr. 261:22 – 262:5; Ex. S-6Y) This is underscored
by that fact that he did not have any workplace examination records. (Tr.
263:10-14) For context, Bradshaw admitted that during a three month period, he
ran the crusher five to seven days total. However, even if he was merely
setting up equipment, which I determined he was not, he still had to perform a
workplace exam. (Tr. 524:6-8; Tr. 873:25 – 874:3) Stone Plus violated Section
56.18002(a).

Negligence

During the May examination, Bradshaw was
given an operations checklist, which apparently languished in his briefcase
until Polgar’s and Tromble’s inspection. The requirement to perform preoperational
examinations was on the list. (Tr. 264:10 – 265:8; Ex. S-8Z) Polgar assigned
this order high negligence because he felt it was the operator’s responsibility
to ensure that workplace examinations are being done, Bradshaw acknowledged
that he should have been performing the exams, yet he admitted he had never done
a single one. (Tr. 267:11-21) A reasonably prudent person familiar with the
mining industry would have known to conduct a workplace examination each shift.
Stone Plus knew of its obligation to perform workplace exams yet failed to do
them. This constitutes high negligence.

Gravity

Polgar testified that this order’s fatal
designation was due in part to the other citations that were issued. He alleged
that one person would be affected based on there rarely being more than one
person working the equipment at the mine site. (Tr. 266:19 – 267:10)

Significant and Substantial

The first and fourth prongs of the Mathies
test have been met. The lack of preoperational examinations created a
measure of danger to safety, which arose with each failure to conduct the exams.
Failure to conduct a workplace exam increases the likelihood that an injury
causing event will occur. The remaining question is whether there was a reasonable
likelihood that the hazard would result in an injury.

Polgar believed this violation was
reasonably likely to cause fatal injuries and rated it as S&S, based on the
other citations he issued. (Tr. 265:24 – 266:17) The failure to identify and
correct potential hazards (such as those identified above), which could have
been identified had examinations been conducted, resulted in a reasonable likelihood
of serious injury. Id. Bradshaw was aware of the hazards daily while working
at the mine site. Id. The S&S designation was warranted.

Unwarrantable Failure

There is a one year document retention
requirement under this standard. Bradshaw had no records of any exams performed.
The violation existed for an extended period of time. (Tr. 267:25 – 268:10) The
failure to conduct workplace exams was extensive and obvious. The failure to
maintain records for such examinations is to be expected if the examinations
are simply not being done. (Tr. 268:11-18; Tr. 270:12-13) There was a high
degree of danger associated with Bradshaw’s failure to conduct or document
workplace examinations. All of the violations discussed above would have been
found if an examination had been competently and honestly done. (Tr. 270:14-22)
practices cited posed a high degree of danger. During the May inspection,
Bradshaw was given the checklist discussed above. He was aware of the workplace
examination requirement. (Tr. 268:22 – 269:4) Bradshaw wrote on the checklist that
a workplace examination was required “on the days that we work.” (Tr. 270:23 –
271:5; Ex. S-8Z) Bradshaw acted with intentional misconduct. There was no
effort made to ameliorate the violation. (Tr. 269:6-8)

The
Secretary proved by a preponderance of the evidence that Stone Plus engaged in
aggravated conduct constituting of more than ordinary negligence. This
violation was the result of an unwarrantable failure to comply with the
regulation.

Penalty

The Secretary assessed the minimum penalty
of $2,000.00. As noted above, Stone Plus was highly negligent and the violation
was S&S. This penalty will not affect the operator’s ability to continue in
business. I assess a penalty of $2,000.00, as recommended by the Secretary.

WHEREFORE,
it
is ORDERED that Stone Plus pay a penalty of $28,000.00 within
thirty (30) days of the filing of this decision.

/s/ L. Zane Gill

L. Zane Gill

Administrative
Law Judge

Distribution:

Brian
Kaufman, Esq., U.S. Dept. of Labor, Office of the Solicitor, 1244 Speer Blvd.,
Suite 515, Denver, CO 80204-3516

Keen
Ellsworth, Esq., Ellsworth & Associates, Ltd.,777 N. Rainbow Blvd., Suite
270, Las Vegas, NV 89107

[1] A front-end
loader is a self-propelled piece of mobile equipment. (Tr. 106:20-23)

[2] Susan Martin, a
contracting company, confirmed that it removed all of its equipment from the
property the first week of August, 2012. (Ex. R3; Tr. 810:2-18)

[3] At the time of
the hearing, Polgar had about sixteen years of experience with front-end
loaders, crushers, and screening plants and had been an MSHA mine inspector for
approximately two years. (Tr. 17:13-16; Tr. 23:14 – 24:3) Before joining MSHA,
Polgar first worked for four years at Willow Creek Sand and Gravel as a truck
driver, dozer operator, skid-steel loader, general laborer, and as a crusher
operator, and then performed the same tasks for Lafarge Materials for four
years. (Tr. 17:23 – 9:18) He then worked for Geneva Rock Products for seven and
half years. (Tr. 19:20 – 21:13)

[4] Tromble started
his mining career in the early 90s. He worked as a heavy equipment mechanic and
as a blasting and explosives miner. (Tr. 614:2-9) At the time of the hearing,
Tromble had worked as an inspector for MSHA since June, 2008, and had been
conducting hazardous accident inspections since October, 2010. (Tr. 611:8 –
612:17)

[5] A hazardous
condition complaint is (in this case) a complaint from an undisclosed party
alleging a hazardous condition at a mine site. See Program Information
Bulletin No. P 10-16, September 2, 2010, available at http://arlweb.msha.gov/regs/complian/PIB/2010/pib10-16.asp.

[6] Neil Bradshaw
is the owner and operator of Stone Plus. Most of the time, he was the only
person working at the mine site. (Tr. 809:19-21)

[7] In fact, as
explained below, I found the plant was actually running, not just setting up.

[8] The inspectors
were originally dispatched to the site to perform a hazardous condition complaint
inspection, which contained eight specific complaints. (Tr. 25:3 – 26:10; Ex.
S-6) As such, it can be inferred that the mine was in production long enough
for a miner to complain about the hazards it cited.

[9] The findings of
fact here and below are based on the record as a whole and my careful
observation of the witnesses during their testimony. In resolving any conflicts
in the testimony, I have taken into account the interests of the witnesses, or
lack thereof, and consistencies, or inconsistencies in each witness’s testimony
and between the testimonies of other witnesses. In evaluating the testimony of
each witness, I have also taken into account his or her demeanor. Any perceived
failure to provide detail about any witness’s testimony is not a failure on my
part to consider it. The fact that some evidence is not discussed does not mean
that it was not considered. See Craig v. Apfel, 212 F.3d 433, 436
(8th Cir. 2000) (administrative law judge is not required to discuss all
evidence and failure to cite specific evidence does not mean it was not
considered). I have also fully considered the contents of the official file,
including the pre- and post-hearing submissions of the parties, and the
exhibits admitted into evidence.

[10] It was obvious
to the inspectors that production had been occurring from just looking at the
mine site. (Tr. 76:25 – 77:9)

[11] A pull-through
test is designed to test the service brakes of a vehicle.

[12] It must be
noted that the 4th and the 7th Circuits have changed the
Commission’s precedent under Mathies by placing the emphasis and bulk of
the analysis on the second element of the test. See Peabody Midwest Mining,
LLC v. FMSHRC, 762 F.3d 611 (7th Cir. 2014); See Knox Creek Coal Corp.
v. Sec’y of Labor, 811 F.3d 148 (4th Cir. 2016). This Respondent, however,
is not located in either of those Circuits, and thus, my analysis is under the
traditional Mathies test.

[13] When required, berms
must be maintained at mid-axle height to the largest piece of equipment, which
was the front-end loader. Its mid-axle height was 30 inches. (Tr. 142:10-21)

[14] There were east
and west access roads, but the screening plant on the third tier blocked access
to the west road. (Tr. 146:4-10)

[15] Section 110(a)
of the Mine Act, 30 U.S.C. § 820(a), imposes strict liability on operators who
are found in violation of the Act. See Ames Construction, Inc., 33
FMSHRC 1607, 1611 (July 2011), aff’d, 676 F.3d 1109 (D.C. Cir. 2012). “Imposing
strict liability under the Mine Act is not optional – it is mandatory.” Wake
Stone Corp.,36 FMSHRC 825, 827 (Apr. 2014).

[16] All of the
potential injuries were exacerbated by the lack of seat belt in the cab of the
front-end loader, which led to the issuance of another citation. (Tr.
147:21-23; Ex. S-11)

[17] At the hearing,
Polgar testified that his reasoning for the S&S designation were the same
as the violation for Order No. 8593604. (Tr. 147:13 -148:12)

[18] Inspector
Polgar testified that the unwarrantable failure factors he relied upon to make
the determination were the same as for Order No. 8593604. (Tr. 148:25 – 149:3)

[19] This also
assumes that the truck was not oversized and did not need to use the dump site,
which was also cited.

[20] Polgar could
tell material had been removed from the pile because it was no longer a
symmetrical cone at the top. (Tr. 124:20 – 125:5)

[21] A pull through
test determines if the brakes are good enough to hold a vehicle when the
vehicle is put in gear. (Tr. 46:6-13)

[22] The standard
requires the vehicle to be fully loaded for the pull-through test to be
considered valid.

[23] Equipment
manufactured after 1969 was required to have a seat belt; this loader was
manufactured in 1977. (Tr. 80:4-13)

[24] The purpose of
the flywheel is to provide momentum or inertia for the jaw crusher. When the
jaw crusher is in operation, the flywheel turns continuously. (Tr. 226:21-23;
Tr. 232:6-9)

[25] Polgar
testified that if there are two violations of the same standard on the same
piece of equipment, MSHA doesn't issue those citations individually. (Tr.
240:5-8)