Secretary of Labor v. Delta Concrete Products, Inc.
Secretary of Labor v. Delta Concrete Products, Inc. (FMSHRC WEST 2014-0117): Eight violations upheld and scale-road citation vacated
Apply this to your situation
This order from 2014 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current MSHA standards and Commission precedent, with citations.
Plain-English summary
MSHA contested nine conditions at Delta Concrete Products' small Alaska gravel operation, including electrical wiring and grounding, a damaged handrail, an unstable ramp wall, and missed workplace examinations. Judge David P. Simonton upheld eight violations, including all five electrical citations and the workplace-examination citation. He reduced high negligence to moderate for two improper electrical splices because Delta had relied on statements during earlier MSHA inspections that led it to believe the methods were acceptable. The Judge vacated the remaining citation because the unguarded vehicle scale sat on a separate access area and was not part of a roadway covered by the cited berm standard. Delta's total penalty was reduced from the proposed $4,721 to $3,807.
Decision snapshot
- Cited standards: 30 C.F.R. §§ 56.11027, 56.12004, 56.12008, 56.12013, 56.12028, 56.18002(a), 56.9300(a), and 56.9303
- Outcome: Eight violations were affirmed, two negligence findings were reduced, one scale-road citation was vacated, and the total penalty was set at $3,807.
- Key point: Prior agency acceptance may mitigate negligence without eliminating a violation, while a roadway-specific berm rule does not cover a scale area that vehicles enter only to be weighed.
Full text (FMSHRC public release)
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
Federal Mine
Safety and Health Review Commission
Office of Administrative
Law Judges
721 19th St.,
Suite 443
Denver, CO 80202-2500
Office: (303) 844-5266/Fax:
(303) 844-5268
November 19, 2014
SECRETARY OF LABOR,
:
CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
:
ADMINISTRATION, (MSHA),
Petitioner,
v.
:
:
:
:
:
Docket No. WEST 2014-117
A.C. No. 50-01783-336602
DELTA CONCRETE PRODUCTS, INC.,
:
Mine ID: 50-01783
Respondent.
:
Mine: Willow Lake Portal
DECISION
Appearances: Sean
J. Allen, Office of the Solicitor, U.S. Department of Labor, 1244 Speer
Blvd., Suite 216, Denver, CO 80202 for Petitioner
Robert
B. Groseclose, Cook, Schuhmann & Groseclose, 714 Fourth Ave., Suite
200, Fairbanks, AK 99707-0810 for Respondent
Before: Judge Simonton
I. INTRODUCTION
This case is before me on a petition
for assessment of civil penalty filed by the Secretary of Labor, acting
through the Mine Safety and Health Administration, against Delta Concrete
Products, Inc. at its Delta Junction mine, pursuant to sections 105 and
110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§
815 and 820 (the “Mine Act” or “Act”). The case includes nine contested
violations with a total proposed penalty of $4,721.00. The parties
presented testimony and documentary evidence at a hearing held in Fairbanks,
Alaska on August 12 and 13, 2014. For the reasons that follow, eight
of the nine contested citations and orders are AFFIRMED with two
reductions in the negligence level and one citation is VACATED.
Respondent will be ordered to pay $3,807.00 in penalties.
II. BACKGROUND
Delta Concrete Products,
Inc., (Respondent) crushes and screens gravel at their mile 267.5 Delta
Junction surface pit mine (the “mine”) in Delta Junction, Alaska. The
mine is subject to regular inspections by the Mine Safety and Health
Administration
(“MSHA”) pursuant to section 103(a) of the Act.
30 U.S.C. § 813(a). The parties stipulated as follows:
A. Respondent was,
at all relevant times, the operator at the Delta Concrete Products Pit,
Mine ID: 50-01783.
B. The mine
listed above is a mine, as defined in the Mine Act.
C. Respondent
is engaged in mining operations in the United States and its mining
operations affect interstate commerce.
D. Respondent is subject
to the jurisdiction of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. §§ 801-965.
E. The Federal
Mine Safety and Health Review Commission has jurisdiction of this matter
under the Mine Act.
F. The
citations at issue in this matter were issued on the date indicated.
G. The inspector whose
signature appears in block 22 of the citations at issue was acting in
his official capacity as an authorized representative of the United States
Secretary of Labor.
H. The Secretary’s
proposed penalties for each citation are listed on Exhibit A of the
penalty assessment filed in this matter and those amounts incorporated
are incorporated by reference herein.
I. The
exhibits to be offered by the parties are stipulated to be authentic
but no stipulation is made as to their relevance or as to the truth
of the matters asserted therein.
Secy’s Prehearing Report.
At hearing, the Secretary presented
testimony from MSHA Inspector Garrett Frey. Inspector Frey has worked
as an inspector for MSHA for two years. Tr. 30. He has conducted
regular MSHA E01 inspections of approximately one hundred sand and gravel
operations and spends ninety five percent of his work time doing so.
Tr. 30-34. Inspector Frey received classroom and field training at the
MSHA Mine Academy in West Virginia. Id. He has also participated
in informal weekly training at staff meetings and journeyman training
which covered basic electricity and three-phase electricity systems. Id.
Frey earned a Bachelor’s degree in engineering which included courses
on basic electricity and three phase electricity. Tr. 31.
Respondent presented testimony
from its President and General Manager, Matthew Walker and electrician
Christopher Morley. Mr. Walker has co-owned Delta Concrete Products since
2002, previously worked for a general contractor and prior to that, for
approximately 18 years, worked for a logging company performing various
functions from running the shop, working on equipment as a field mechanic,
operating equipment and cutting down trees. Tr. 298-299. Mr. Morley
has owned Morley Electric in Delta, since 2004. Tr. 389. He has been
a journeyman electrician since 1998 and an electrical administrator administrating
electrical installations ensuring they meet code and job requirements since
2004. Tr. 390. Morley is licensed as a journeyman electrician and
electrical administrator with the Alaska Division of Occupational Licensing
and a member of the International Brotherhood of Electrical Workers 1547.
Id.
I have organized my findings
by individual docket and detailed my final ruling for each citation within
its respective subsection. The Secretary designated the majority of these
contested citations as “Significant & Substantial” (S & S) violations.
At hearing, Respondent contested the factual representations of the testifying
MSHA inspector, the underlying legal basis of the citations as well as
the Secretary’s gravity and negligence designations.
As such, I have prepared
a Statement of Law outlining the Commission’s instructions regarding: 1)
Burden of Proof; 2) Significant and Substantial violations; 3) Negligence
and 4) Penalty Assessments. I have followed these guidelines for each
of the nine contested violations.
The hearing for these
nine citations lasted two days and produced a 517 page transcript with
numerous exhibits. The parties also submitted post-hearing briefs articulating
their respective positions on the evidence presented at hearing. I have
reviewed all of this evidence at length. In the interest of brevity,
I have not included a general overview summary of the testimony presented,
but rather have cited to the testimony, exhibits, and arguments I found
critical to my ultimate ruling within my analysis.
III. STATEMENT OF LAW
A. Burden of Proof
The Commission has long held,
“In an enforcement action before the Commission, the Secretary bears the
burden of proving any alleged violation.” Jim Walter Resources, Inc., 9 FMSHRC
903, 907 (May 1987); Wyoming Fuel Co., 14 FMSHRC 1282, 1294 (August 1992).
The Commission has described the Secretary’s burden as:
The
burden of showing something by a “preponderance of the evidence,” the
most common standard in the civil law, simply requires the trier of
fact “to believe that the existence of a fact is more probable than
its nonexistence.”
RAG Cumberland Res.
Corp., 22 FMSHRC 1066, 1070 (Sept. 2000); Garden Creek Pocahontas
Co., 11 FMSHRC 2148, 2152 (Nov. 1989).
The Secretary
may establish a violation by inference in certain
situations. Garden Creek Pocahontas Co., 11 FMSHRC 2153. Any such inference, however, must be inherently reasonable,
and there must be a rational connection between the evidentiary facts
and the ultimate fact inferred. Mid-Continent Resources, 6 FMSHRC
1132, 1138. (May 1984).
If the Secretary has established facts supporting the
citation, the burden shifts to the Respondent to rebut the Secretary’s
prima facie case. Construction Materials, 23 FMSHRC 321, 327 (March
2001) (ALJ Feldman).
B.
Significant and Substantial
A violation is Significant & Substantial (S&S),
“if based upon the particular facts surrounding the violation there exists
a reasonable likelihood that the hazard contributed to will result in
an injury or illness of a reasonably serious nature.” Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
In
order to uphold a citation as S&S, the Commission has held that
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. Mathies Coal Co., 6 FMSHRC 1, 3-4
(Jan. 1984).
An
S&S designation must be based upon the particular facts surrounding
the violation and must be made in the context of continued normal mining
operations. Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988); U.S.
Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The Secretary
does not necessarily have to “prove a reasonable likelihood that the
violation itself will cause injury.” Cumberland Coal Resources, LP,
33 FMSHRC 2357, 2365 (Oct. 2011) (holding that failure to maintain emergency
equipment was S&S despite low likelihood of emergency occurring); See
also Musser Engineering, Inc. and PBS Coals 32 FMSHRC
1257, 1280-81 (Oct 2010) (PBS).
However,
the Commission has recently reiterated that “it is the contribution of
a violation to the cause and effect of a hazard that must be significant
and substantial.” Black Beauty Coal, 34 FMSHRC 1733, 1740 (August
2012) (upholding Judge’s S&S determination that a ¼ mile wide gap
in a protective berm created a safety hazard of trucks driving over
a steep embankment) (quoting U.S. Steel Mining Co., 6 FMSHRC
1834, 1836)(Aug 1984).
C. Negligence
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 be on the alert for conditions and practices in the mine that affect
the safety and health of miners and to take steps necessary to correct
or prevent hazardous conditions or practices.” Id. Low negligence
exists when “[t]he operator knew or should have known of the violative
condition or practice, but there are considerable 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. High negligence exists when [t]he operator
knew or should have known of the violation, condition or practice and
there are no mitigating circumstances. Id. See also Brody Mining,
LLC, 2011 WL 2745785 (2011) (ALJ). Finally, the operator is guilty
of reckless disregard where it “displayed conduct which exhibits the absence
of the slightest degree of care.” Id. MSHA considers mitigating
circumstances which may include, but are not limited to, actions taken
by the operator to prevent or correct hazardous conditions or practices.
Id.
D. Penalty Assessment
It
is well established that Commission administrative law judges have the
authority to assess civil penalties de novo for violations of the Mine
Act. Sellersburg Stone Company, 5 FMSHRC 287, 291 (March 1983).
The Act requires that in assessing civil monetary penalties, the Commission
ALJ shall consider six statutory penalty criteria:
(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 of the person charged in attempting to achieve rapid compliance
after notification of a violation.
30 U.S.C. 820 (I).
Although I assess monetary penalties
de novo, the Secretary has submitted proposed penalty amounts for each
citation contested at hearing. Following 30 CFR §100.3, the Secretary
submitted regularly assessed penalty amounts based upon point values corresponding
to the six statutory criteria for all citations.
For all penalty assessments,
the Secretary bears the burden of establishing the proposed penalty is
appropriate based upon the statutory criteria of Section 110(i) of the
Act. In re: Contest of Respirable Dust Sample Alteration Citations,
14 FMSHRC 239, 241 (ALJ Broderick) (January 1992) (Order).
In this matter, there appears to
be no dispute that Respondent is a small family owned business. Tr.
301. Respondent has not argued or presented any evidence indicating
that any of the proposed penalties would affect its ability to continue
business operations. I have discussed the violation history, negligence,
gravity, and abatement efforts pertaining to each alleged violation within
my findings for each citation.
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW
ELECTRICAL VIOLATIONS
Five of the nine citations adjudicated
in this case, 8693966, 8693967, 8693968, 8693970 and 8693978 involve electrical
violations. For clarity these citations will be addressed together.
It is undisputed that the number of people affected by each violation
is one.
Respondent crushes, screens, washes
and conveys gravel at their Delta Junction mine facility. The crushing
operation is referred to as the “dry side” and the screening/washing
and conveying process occurs on the “wet side”. Resp. Prehearing Brief.
It is undisputed that at the time of the inspection the dry side was
“red tagged” and had been out of service since 2012. Id. All
of the electrical citations in this case were issued for the wet side.
At issue is whether the wet side was operational at the time the citations
were issued.
A. MSHA’s
Authority to Inspect the Wet Plant Portion of Delta Junction Mine
Respondent argued that the wet
side of the mine should not have been subject to the issuance of citations
because it was locked and tagged out and therefore, removed from service.
Respondent’s president and co-owner, Matthew Walker testified it was his
understanding that if a piece of mining equipment was locked and tagged
out it could be subject to inspection but not cited. Tr. 366-367.
However, Inspector Garrett Frey testified that he appropriately inspected
the wet plant portion of the mine according to MSHA’s Metal and Nonmetal
General Inspection Handbook procedures. Tr. 283-297. The Metal and
Nonmetal General Inspection Handbook states,
[a]t times, inspectors attempt
to conduct regular inspections of mines or mills and find, on arrival,
that it is not operating or not operating at full capacity and some
equipment or machinery is not in operation. In these cases, regardless
of whether the mill or mine is operating or only operating with limited
capacity, inspectors shall conduct a regular inspection…of the non-producing
or non-active section of the mine or mill to assure that potential hazards
or risks to miners do not exist.
Tr. 284-286, Sec’y Ex. P-17, Page 35.
Inspector Frey testified that Respondent
was continuing to produce material based upon the mine producing material
two weeks prior to the inspection. Tr. 286. The inspector observed
that Respondent could continue to produce material from the wet side
of the mine because the wet plant distribution box was locked out and
tagged out only for the purpose of a screen change. Tr. 36-38; 286-287.
Frey confirmed that the mine had not produced material for two weeks
prior to the inspection based on his conversation with Walker and later
verified by production reports. Tr. 36-38. However, the inspector believed
that the wet plant could easily be placed back into service. Tr. 36-38.
During the hearing, Inspector Frey testified to observing many electrical
and non-electrical violations on the wet side of the mine that he believed
would continue to exist during continued mining operations. Tr. 286-287.
The operator, Matt Walker testified that the
wet side of the mine was “removed from service” because the intention
of the lock and tag was to permanently disable that part of the mine.
Tr. 370-371. However, MSHA’s Citation and Order Writing Handbook for
Coal Miners and Metal and Nonmetal Mines states,
[t]he term ‘removed from service’
does not mean that the mine operator stopped using and parked a piece
of equipment (e.g., front-end loader, truck) or a mining unit (e.g.,
portable crusher, screening unit) when it could or can be restarted and
easily placed back into service in the same condition which caused issuance
of the original citation(s) or order(s). Rather, “removed from service”
refers to the action(s) taken by the mine operator or contractor to
permanently incapacitate or render inoperable the equipment and eliminate
the violation.
Inspector Frey testified that the
wet plant was not removed from service because it was locked and tagged
out only for the purpose of a screen change as noted on the distribution
box tag. Tr. 36-38. He further testified that the wet side was not
permanently incapacitated or rendered inoperable because the wet plant
could easily be placed back into service in the same condition after
the screens were changed for production purposes. Tr. 288-290; Sec’y
Ex. P-2, Photo 4. The inspector explained that the wet plant could
be returned to service by unlocking the distribution box and energizing
the wet plant. Id.
Similarly, Respondent argues that
at a minimum the cited electrical violations would have been corrected
during off season maintenance. Resp. Post Hearing Brief, p. 8. However,
this argument presupposes that the wet side of the plant was indeed
shut down for the season and was removed from service. A fact contrary
to the evidence relied upon by the inspector noted above that the wet
side was locked and tagged out only for a screen change; thus, indicating
intent or ability to reactivate the wet side as needed for further operation.
Nor was there evidence presented by Respondent that, had no citations
been issued, a competent individual would have conducted an inspection
and tagged the electrical issues for repair given Respondent’s admission
that had the citations not been issued the electrical issues would have
continued on during normal mining operations. Tr. 487.
I find that it was appropriate
and necessary for Inspector Frey to inspect the wet plant for safety
hazards because (1) MSHA’s Inspection handbook allows inspectors to conduct
inspections at mines that are not operating at full capacity, and (2)
the wet side of the Delta Junction mine was not permanently incapacitated
because the lock and tag on the distribution box was marked only for
a screen change and material had been run on the wet side of the mine
two weeks prior to the inspection based on production reports.
B. Citation
No. 8693966
Inspector Frey issued Citation No. 8693966
on August 19, 2013 for an alleged violation of 30 CRF 56.12013. Tr.
39; Sec’y Ex. P-2. The inspector alleged within the citation that:
A mechanically strong, insulated
and sealed splice was not used in connecting a P-136-29-MSHA 6AWG SOOW
power cable coming from the wet plant distribution box in the operator’s
tower. The wet plant has operated using this 480 volt three phase
electrical connection of only wire nuts and minimal electrical tape approximately
16 inches off the ground immediately in front of the wet plant distribution
box. A miner coming into contact with energized 3 phase electrical
circuits could experience severe shocks, burns, or other fatal electrical
injuries and complications.
Sec’y Ex. 2.
Inspector Frey determined that the
violation was reasonably likely to cause an injury, the resulting injury
would be fatal, the violation was S&S, affected one person, and was
the result of Respondent’s high negligence. Sec’y Ex. P-2. The Secretary
proposed a penalty of $807.00.
- Findings
Inspector Frey issued Citation No. 8693966,
because he determined that a splice connected to a wet plant distribution
box was in violation of 30 CFR § 56. 12013 which mandates that:
Permanent splices and repairs made
in power cables, including the ground conductor where provided, shall
be:
(a)
Mechanically
strong with electrical conductivity as near as possible to that of the
original;
(b)
Insulated
to a degree at least equal to that of the original, and sealed to
exclude moisture; and
(c)
Provided
with damage protection as near as possible to that of the original,
including good bonding to the outer jacket.
Frey testified that Respondent used
wire nuts with electrical tape wrapped around them to connect a 480-volt
power cable coming from the wet plant distribution box in the operator’s
tower. Tr. 44. The inspector’s notes designate that the splice was
16 inches off the floor below the wet side distribution box and was
located in the travel way of the operator’s tower. Sec’y Ex. P-2.
Frey stated that the splice violated the standard because wire nuts are
not mechanically strong with electrical conductivity as near as possible
to that of the original. Tr. 43-46. The inspector also testified
that the electrical tape used to wrap around the wire nuts was not
bonded in a way to prevent moisture from infiltrating the splice. Tr.
46. He stated that he observed the black, green, red, and yellow inner
conductors on the splice which demonstrated that the conductors were not
sealed from moisture or adequately bonded to the outer jacket. Tr.
45-47. He also noted that the filler material sticking out of the
cables exposed the splice to moisture that could potentially wick down
the length of the cable and create a potential shock hazard to miners.
Id.
Christopher Morley, Respondent’s
electrical witness, testified that the splice was mechanically strong because
the power cords were secure and would not come apart when pulled.
Tr. 419-421. Morley believed that the wire nuts wrapped in electrical
tape were sealed to exclude moisture. Id. However, he acknowledged
the splice was not protected from damage as near as possible to the
original because it was missing the outer jacket. Tr. 421. The inspector
provided very detailed, specific and compelling testimony regarding the
likelihood of moisture wicking down the cables given the location of
the splice in the Conex structure close to an open door with evidence
of rusting and water tracks on the structure walls. Tr. 44-49. Accordingly,
I defer to his reasonable determination and credit his testimony over
that of Respondent’s electrical witness.
As such, I find that Respondent
violated 30 CRF 56.12013 by failing to connect a 480-volt power cable
with use of a splice that was mechanically strong and insulated and
bonded to a degree that would exclude moisture. Accordingly, Citation
No. 8693966 is AFFIRMED. However, for reasons explained below
the negligence level will be modified from high to moderate.
a. Prior Non-Enforcement of Standards at Delta
Junction Mine
Matthew Walker, the operator of
Delta Concrete, testified that previous MSHA inspectors had instructed
him that there were better ways to splice, but the way Respondent chose
to connect power cables was adequate. Tr. 349. Walker testified that
previous MSHA inspector’s did not inform him to make any changes to
the existing electrical splices that were cited by Inspector Frey. Tr.
350. He argued that because they had not previously been cited for
any electrical splice connections, the Secretary should be estopped from
enforcement of citations dealing with hazardous electrical splices. Tr.
351.
Although such evidence may be weighed
when determining the appropriate penalty, the Commission has generally
rejected the prior non-enforcement defense to enforcement of a future
citation. In Secretary v. King Knob Coal Company, Inc., 3 FMSHRC
1417 (1981), the Commission generally rejected the doctrine of equitable
estoppel. However, it also viewed the erroneous action of the Secretary
(mistaken interpretation of the law leading to prior non-enforcement) as
a factor which can be considered in mitigation of penalty. The Supreme
Court has held that equitable estoppel generally does not apply against
the federal government. Federal Crop Insurance Corp. v. Merrill,
332 U.S. 380, 383-386 (1947); Utah Power and Light Co. v. United
States, 243 U.S. 389, 408-411 (1917). The Court has not expressly
overruled these opinions, although in recent years lower federal courts
have undermined the Merrill/Utah Power doctrine by permitting estoppel
against the government in some circumstances. See United States
v. Georgia-Pacific Co., 521 F.2d 92, 95-103 (9th Circ. 1970). Absent
the Supreme Court's expressed approval of that decisional trend, we think
that fidelity to precedent requires us to deal conservatively with this
area of the law. This restrained approach is buttressed by the consideration
that approving an estoppel defense would be inconsistent with the liability
without fault structure of the 1977 Mine Act. See El Paso Rock
Quarries, Inc., 3 FMSHRC 35, 38-39 (1981). Such a defense is really
a claim that although a violation occurred, the operator was not to
blame for it. Furthermore, under the 1977 Mine Act, an equitable consideration,
such as the confusion engendered by conflicting MSHA pronouncements, can
be appropriately weighed in determining the appropriate penalty.
Accordingly, the doctrine of equitable
estoppel will not be applied to the enforcement actions of the Secretary
here. However, the Respondent's evidence in this connection will be
considered in mitigation of penalty. Citing Sec'y of Labor, Mine
Safety & Health Admin. (MSHA), Petitioner, 15 FMSHRC 2549 (Dec.
17, 1993).
- Gravity
Inspector Frey designated Citation
No. 8693966 as an S&S violation. The first element of the Mathies
test requires a violation of a mandatory safety standard, and I have
already found that the failure to connect a 480-volt power cable with
use of a mechanically strong and insulated splice was a violation of
30 CFR § 56. 12013. The second Mathies element is a contribution
to a discrete safety hazard. By failing to remedy the deficient splice
that potentially existed since fall of 2011, Respondent exposed miners
to possible severe shocks or burns. Tr. 57, 484.
The third Mathies element
requires showing a reasonable likelihood that the hazard contributed to
will result in an injury. The inspector noted that no documentation
of workplace exams identified the defective splice. Tr. 57. Walker
testified that the splice probably existed from the fall of 2011 to
August of 2013. Tr. 484. Inspector Frey believed that the hazard
existed when the wet plant was last run and would likely continue to
exist during mining operations because multiple deficient splices were
noted over the course of the initial inspection of Delta Concrete.
Tr. 57. Further, Walker acknowledged that had Inspector Frey not cited
the condition it would have continued to exist into the indefinite future.
Tr. 487.
The Inspector contends that a fatal
electrocution injury was reasonably likely to occur through one of several
different ways. Tr. 49. The inspector testified that a miner could
contact the splice by (1) reaching down to open the door to the tower,
(2) brushing against the splice while turning on or off the distribution
box, (3) grabbing items from the storage hooks next to the splice, or
(4) slipping and falling into the splice because the electrical tower
did not exclude moisture. Tr. 49-51. Because the splice was located
in the travel way of the operator’s tower, the potential for an electrocution
to a miner was more likely. Tr. 49. I credit the inspector’s testimony
that the deficient splice was obvious and could be seen immediately when
entering the operator’s tower. Tr. 63. Inspector Frey testified that
the wet plant distribution box was located next to a door where you
could see daylight which likely exposed the splice to weather conditions.
Tr. 49. Also, Inspector Frey testified no current continuity and resistance
test had been performed since March of 2012, which increased the risk
of electrical potential taking the path of least resistance. Tr. 56.
Respondent argues that the violation
was not reasonably likely to lead to a significant injury because according
to electrician Morley, the splice was sufficiently protected against electrical
shock Tr. 457. Morley testified that the wire nuts coupled with the
electrical tape provided protection from moisture. Tr. 405. The operator,
Walker, also testified that he has never had a problem with moisture
in the operator’s tower and thus there was no increased risk of weather
exposure to the splice. Tr. 346. After considering both parties testimony,
I find that the state of the splice without adequate protection from
the elements and adjacent to a travel way without a protective outer
jacket created a reasonable likelihood of contributing to a potentially
fatal electrical shock. The lack of a continuity and resistance test
and the splice’s exposure to weather conditions increased the risk of
a serious injury or death to a miner working in the travel way of
the operator’s tower. Tr. 56, 49.
The fourth Mathies element
requires showing a reasonable likelihood that the hazard contributed to
will result in an injury. Inspector Frey testified that under the right
circumstances a miner coming into contact with the splice would potentially
be fatal because the power cord was energized up to 480 volts. Tr.
59. The inspector also testified to five separate fatalgrams, each showing
that a 480-volt shock can be fatal. Tr. 60. The inspector stated
that the fatalgrams demonstrate that 480-volt electrical systems are dangerous
and need to be installed and maintained in order to prevent exposure
to fatal amounts of electricity. Tr. 61. Although Respondent argued
that the splice was secure and safe to grab while energized, I find
that the testimony of the inspector substantiates that the splice was
a danger to miners working in the travel way of the operator’s tower.
Inspector Frey testified that the splice was in close proximity to the
door of the operator’s tower. Tr. 49. Frey noted that there was
evidence of water infiltration in the operator’s tower and that moisture
increases the risk a miner operating the wet plant distribution box will
be shocked. Tr. 51. The inspector also testified that there had not
been a continuity and resistance test done that year which increased
the undetected risk electricity would take the path of least resistance.
Tr. 56. Therefore, after considering the above testimony, I find a reasonable
likelihood that an electrical shock coming from the 480-volt splice would
cause serious injury or death to a miner.
As the evidence produced at hearing
supports all four elements of the Mathies formula, I find that
the Secretary has established that Citation No. 8693966 was an S&S
violation.
- Negligence
Inspector Frey credibly and without
equivocation in a straight forward, compelling manner testified and noted
in his citations that throughout the mine there were similar deficient
splices. Tr. 57. The inspector believed that the splices were made
this way intentionally and that it was common practice at Delta Concrete
to splice using wire nuts and electric tape. Tr. 57. Accordingly,
he assigned a high negligence level to the violation at issue.
I find that Respondent was aware
or should have been aware of the violation, but there are some mitigating
circumstances that must be considered. I credit the inspector’s testimony
that there was no documentation identifying any electrical hazards and
that he believed the hazards would continue to exist during continued
mining operations. Tr. 57. He also noted that the deficient splice
was obvious upon entering the travel way of the control tower. Tr.
64. Operator Walker acknowledged that the deficient splice would have
continued to exist at the mine had Respondent not been cited. Tr.
487.
When determining who was responsible
for creating the splices there appeared to be a fundamental miscommunication
or misunderstanding between Inspector Frey and Operator Walker. I credit
Walker’s testimony that his son, Ryan Walker was likely the foreman at
the time the splice was made and was, in fact, the person that made
the splice. Tr. 335. The inspector testified that based on his conversations
with Walker, the foreman was not competent to perform electrical maintenance
at the mine. Tr. 64. Frey testified that he considered this statement
when determining the severity of the negligence. Tr. 65. Walker denied
telling Frey that the foreman at the time the splice was made
was not competent to perform electrical maintenance. Tr. 483. He went
on to explain that his son, Ryan started doing electrical work at the
mine in 2002 and that he worked with a local electrician, Ted Hamilton
at the mine until he had the requisite experience to do the electrical
work himself. Tr. 336. When his son finished working at the mine
in approximately 2011 he went on to work with an electrical contractor
at Fort Greely for a couple of years. Tr. 339. Although there is
no testimony to suggest whether the electrician, Hamilton knew or had
training in MSHA electrical regulations, I credit Walker’s testimony that
he reasonably believed his son, Ryan, was a competent person to perform
the electrical work. I find that the operator reasonably and in good
faith believed a competent person was performing the electrical maintenance,
and credit his testimony based on his personal observations of Ryan’s
work with electrician Hamilton.
For all these reasons, I find
that Citation No. 8693966 was the result of moderate rather than high
negligence on the part of Delta Concrete, as they should have been aware
of the violation, but I credit the operator’s testimony that he maintained
a good faith belief he designated a competent person to perform electrical
maintenance at the Delta Junction mine.
- Penalty
Assessment
The Secretary has proposed a regularly
assessed penalty of $807.00 for this citation. Respondent’s past history
of previous violations revealed that the mine has a total of seven past
violations and no repeated violations of 56. 12013. P-1. Walker testified
that Respondent is a small mom and pop operation. They had 15 current
employees at the time the citation was issued. Tr. 301. Respondent
has not argued or presented any evidence indicating that the proposed
penalty would affect its ability to continue business operations. I
found a moderate level of negligence because the operator maintained a
good faith belief in his son, who had previously performed the electrical
maintenance, to be a competent person to conduct repairs. Respondent
was negligent because the deficient splice was open and obvious, intentionally
made, undocumented, and by Walker’s own admission would have continued
to exist at the mine had the inspector not issued a citation. Tr.
57, 64, 487. I also found the potential for an electrocution to a
miner was more likely and thus S & S because the defective splice
was located in the travel way of the operator’s tower subject to the
risk of exposure to the elements as well as the fact that the spice
had existed since at least late 2011. Tr. 49. Although the citation
was terminated based upon a seasonal closure and shutdown of the mine,
Respondent’s electrical witness, Christopher Morley testified to repairing
most of the electrical hazards cited by Inspector Frey. Tr. 389-396.
After considering all six penalty
criteria as well as the Respondent’s reliance on MSHA pronouncements from
prior inspections, I am modifying the Secretary’s proposed penalty of
$807.00 and assess Respondent a civil monetary penalty of $400.00 for
Citation No. 8693966.
C. Citation No. 8693967
Inspector Frey issued Citation No.
8693967 on August 19, 2013 for an alleged violation of 30 CRF 56.12008.
Tr. 83. He alleged within the citation that:
An energized 120-volt electrical
cord passing through a cutout in the metal back wall of the operator’s
station tower is not bushed allowing wear and damage to the outer jacket,
insulation, and eventually inner conductors. A miner in contact with
the metal tower could become a path to ground in the event of a fault
leading to shock and burn type injuries.
Sec’y Ex. 4.
Frey determined that the violation was reasonably
likely to cause an injury, the resulting injury would be lost workdays
or restricted duty, the violation was S&S, affected one person, and
was the result of Respondent’s moderate negligence. Sec’y Ex. 4. The
Secretary has proposed a penalty of $100.00.
- Findings
Inspector Frey issued Citation No. 8693967,
because he determined that a 120-volt electrical cord passing through
a cutout in the operator’s tower was not bushed. This was in violation
of 30 CFR § 56.12008 which mandates that:
Power wires and cables shall be insulated
adequately where they pass into or out of electrical compartments. Cables
shall enter metal frames of motors, splice boxes, and electrical compartments
only through proper fittings. When insulated wires, other than cables,
pass through metal frames, the holes shall be substantially bushed with
insulated bushings.
The
inspector testified that he observed a blue 120-volt electrical cord without
a bushing passing through a cutout of the metal back wall of the operator’s
tower. Tr. 85. Frey stated that the cutout allowed for wear and
damage to the cord’s insulation and outer jacket. Tr. 85. He also
testified that there were multiple cords coming out of the operator’s
tower and that the blue power cord hung straight down. Tr. 86. I
credit the inspector’s testimony where he testified that the power cord
had some weight on it and that the weather conditions had the ability
to degrade the power cord rapidly. Tr. 86. Also, Frey noted
that the cited power cord was still energized at the time the citation
was issued. Tr. 88.
Inspector Frey explained the standard
was violated because the power cord entered a cutout of the operator’s
tower that was not protected. Tr. 88. The inspector credibly testified
that the cutout was not protected because it had burrs and sharp edges
on the side that would eventually cut through the power cords insulators
and contact the inner conductors. Tr. 88. Morley, Respondent’s electrical
witness acknowledged that the power cord should have been bushed. Tr.
422. As such, I find that Respondent violated 30 CRF 56.12008 by failing
to install a bushing for a blue 120-volt electrical cord where it passed
through a cutout in the operator’s tower. Citation No. 8693967 is AFFIRMED.
- Gravity
Inspector Frey designated Citation
No. 8693967 as an S&S violation. The first element of the Mathies
test requires a violation of a mandatory safety standard, and I have
already found that the failure to install a bushing for the blue 120-volt
electrical cord entering a cutout in the operator’s tower was a violation
of 30 CFR § 56. 12008. The second Mathies element is a contribution
to a discrete safety hazard. By failing to provide a bushing for the
cutout in the operator’s tower, Respondent exposed miners to potential
shock and burn injuries. Tr. 95.
The third Mathies element
requires showing a reasonable likelihood that the hazard contributed to
will result in an injury. The inspector testified that the blue 120-volt
power cord was damaged where it was going in and out of the metal
cutout. Tr. 94. Frey testified that at the time the citation was
issued, there was no exposure to the insulation and inner conductor but
with continued use the power cord would be damaged. Tr. 94. With
continued use, the power cord would continue to degrade and eventually
the conductors would make contact with the metal frame of the operator’s
tower. Tr. 90. If the inner conductor made contact with the metal
frame while energized, the power cord would either trip the breaker or
potentially bleed electric potential to the area without drawing enough
current to trip the breaker. Id. Also, the inspector stated
that the weather exposure of the cutout increased the risk a miner would
be exposed to electrical shock. Tr. 91.
Respondent argued that the violation
was not reasonably likely to lead to a significant injury because there
was a breaker system connected with the power cord which would allow
the cord to short. Tr. 408-419. Morley, Respondent’s electrical witness,
testified that because the operator’s tower is grounded, the power cord
would trip the breaker if there were a cut in the jacket. Tr. 409.
After considering both parties’ testimony, I defer to and credit the
inspector’s testimony that there is always the potential that the power
source will not break and that weather exposure increases the risk of
shock to miners working in the operator’s tower. Tr. 408-411. As
such, I find that the lack of a bushing to protect the power cord
entering the cutout made it reasonably likely that a significant injury
would occur.
The fourth Mathies element
requires a reasonable likelihood that a resulting injury will be reasonably
serious. Inspector Frey testified that it is unlikely that a shock
from a 120-volt power cord would be fatal, but there was the potential
for miners to be shocked or burned. Tr. 94. Frey believed that a
potential injury from touching the power cord while it was energized
would likely lead to lost workdays or restricted duty depending on severity.
Tr. 95. He also noted that the cutout allowed the power cord to be
exposed to weather, so there was the potential for moisture to wick
up the cord. Tr. 92. Wicking allows electricity to carry up a cord
while it is wet, which could cause a serious shock or burn injury.
Tr. 92. Therefore, considering the above evidence, there is a reasonable
likelihood that an electrical shock coming from 120-volt power cord could
cause serious injury to a miner.
As the evidence produced at hearing
supports all four elements of the Mathies formula, I find that
the Secretary has established that Citation No. 8693967 was an S&S
violation.
- Negligence
Inspector Frey
testified that it was likely that the operator or miner had observed
the hazard based on similar cords having bushings to protect them.
Tr. 96. Frey also acknowledged that at one point the power cord could
have had a bushing and worked its way out. Tr. 97. I credit the
inspector’s testimony that the 120-volt power cord was not terribly easy
to see because the cutout was located in the back of the operator’s
tower which is elevated from the ground. Tr. 97. He also acknowledged
that the violation was not an obvious hazard and not terribly easy to
see. Id.
Frey noted that
the ability for the 120-volt power cord to move affected the way he
designated negligence. Tr. 97. He testified that the cord had probably
been there for a while because it exhibited some damage. Tr. 91.
The inspector believed that because the power cord could freely move
and was exposed to weather conditions, the cord would likely degrade
down to the insulation and inner conductors. Tr. 97. Also, the inspector
testified that because this power cord was plugged into the wall there
was the potential for water to infiltrate the area and potentially wick
up the cord. Tr. 98. I credit Frey’s testimony that the risk of
an electrical shock was increased because the operator’s tower is frequently
visited by miners. Tr. 49.
For all these reasons, I find
that Citation No. 8693967 was the result of moderate negligence on the
part of Respondent, as they should have been aware of the violation,
but I credit the inspector’s testimony in that the hazard was not obvious.
Tr. 98. Therefore, the negligence designation for Order No. 8693967
is upheld as moderate.
- Penalty
Assessment
The Secretary has proposed a regularly
assessed penalty of $100.00. Respondent’s past history of previous violations
revealed that the mine has a total of seven past violations and no
repeated violations of 56.12008. P-1. After considering all six penalty
criteria analyzed earlier in this decision, I uphold the Secretary’s proposed
penalty and assess Respondent a civil monetary penalty of $100.00 for
Citation No. 8693967.
D. Citation
No. 8693968
Inspector Frey issued Citation No.
8693968 on August 19, 2013 for an alleged violation of 30 CRF 56.12004.
Tr. 107. The inspector alleged within the citation that:
The 480-volt 3 phase power cable energizing the sand
stacker belt drive motor has multiple areas exposed to mechanical damage
that have not been protected. The power cable may have been smashed
and is deformed near the tail, has a slice that removed approximately
1/2” of the outer jacket exposing the cable to water damage/hazards,
and a 1” gash where inner wires are visible and exposed. Inner conductors
may be damaged. The damage is at eye level along a travelway. A miner
traveling adjacent the sand stacker performing maintenance or production
duties and contacting a damaged conductor could suffer shock, burn, and
other fatal electrical type injuries and complications.
Sec’y Ex. 5.
Frey determined that the violation was reasonably
likely to cause an injury, the resulting injury would be fatal, the
violation was S&S, affected one person, and was the result of Delta
Concrete’s high negligence. Sec’y Ex. 5. The Secretary has proposed
a penalty of $807.00.
- Findings
Inspector Frey issued
Citation No. 8693968, because he determined that a 480-volt 3 phase power
cable had multiple exposed areas of unprotected damage. This was a
violation of 30 CFR § 56. 12004 which mandates that:
Electrical conductors shall be of a sufficient
size and current-carrying capacity to ensure that a rise in temperature
resulting from normal operations will not damage the insulating materials.
Electrical conductors exposed to mechanical damage shall be protected.
Frey
testified that he observed multiple areas of mechanical damage on a 480-volt
power cable that energized a sand stacker belt drive. Tr. 109. The
power cord was feeding the drive motor on the sand stacker and Frey
observed multiple areas where the cord was cut, gashed, and smashed.
Tr. 109-113, Sec’y Ex. P-5, Photos 1-5. In one location the inspector
observed a half-inch gash where the inner wires were visible and exposed.
Tr. 109. The inspector believed that with continued mining operation
the damaged areas would wear down to the inner conductors and expose
miners to electrical shock. Tr. 111. Both Mr. Walker and Mr. Morley
acknowledged that the cited cable was damaged in the locations cited
by Inspector Frey. Tr. 423-426. 487-489.
According to the testimony of the
inspector, the standard was violated because the power cord was not protected
against mechanical damage in multiple places. Tr. 110. I credit the
inspector’s testimony where he stated he observed multiple areas of a
480-volt 3 phase power cable that was cut, gashed, and smashed. Tr.
110. As such, I find that Delta Concrete violated 30 CRF 56.12004
by failing to repair a 480-volt 3 phase power cable which had multiple
areas that were exposed to mechanical damage. Citation No. 8693968 is
AFFIRMED.
- Gravity
Inspector Frey designated Citation
No. 8693968 as an S&S violation. The first element of the Mathies
test requires a violation of a mandatory safety standard, and I have
already found that the failure to repair a 480-volt 3 phase power cable
that was exposed to mechanical damage was a violation of 30 CFR § 56.
12004. The second Mathies element is a contribution to a discrete
safety hazard. By failing to repair multiple areas of a power cable,
Respondent exposed miners to potentially fatal shock and burn injuries.
Tr. 111.
The third Mathies
element requires showing a reasonable likelihood that the hazard contributed
to will result in an injury. Inspector Frey testified that he observed
multiple areas where a 480-volt power cord had cuts, gashes, and smash
marks. Tr. 109. In one area of the power cord, he observed a one-inch
gash where the inner wires were visible and exposed. Tr. 109. The
inspector also testified that areas where gash marks were observed also
contained moisture, dirt, and sections where the entire outer jacket was
missing. Tr. 110-111. Frey noted that he observed a part of the
power cord that was mashed and deformed. Tr. 109. He also believed
that the damage to the 480-volt power cord occurred over multiple instances
and not just one. Tr. 110-111. The inspector testified that the damage
to the power cord likely occurred over the course of time and if the
hazards were recognized they were not fixed or documented. Tr. 112.
He believed that the dirt and moisture trapped in the gashed areas of
the power cord would, over time, degrade the insulation and further expose
the inner conductors. Tr. 113. The expose to moisture and dirt increased
the likelihood a miner would be exposed to an electrical injury. Tr.
114. Also, Frey noted that the power cable travels along the side
of the sand stacker at eye level and was immediately adjacent to a
travelway. Tr. 117. He concluded that a miner performing maintenance,
repair, or workplace exams could potentially be exposed to the different
hazards of mechanical damage. Tr. 117.
Respondent argued that the violation was not
reasonably likely to lead to a significant injury because the wet side
of the Delta Junction mine was locked and tagged out and no energy
could get to the cable. Tr. 361. Walker, the operator of the mine,
testified that no bare wires were exposed on the 480-volt 3 phase power
cable. Tr. 362. He testified that the gashed parts of the power
cord did not show bare wire, but actually a fiber-type filler that was
between the outer jacket and the conductors. Tr. 363. Thus, the operator
believed that the damage to the outer jacket of the 480-volt power cable
would not cause a miner to be electrocuted. Tr. 364. Respondent also
argued that maintenance, like greasing, occurs only when the wet side
is non-operational and therefore the exposure to an energized power cord
is decreased. Tr. 125. After considering both parties testimony, I
find that the cuts, gashes, and smash marks in the 480-volt 3 phase
power cord made it reasonably likely that a significant injury would
occur to a miner. I defer to and credit the inspector’s straight forward
and detailed testimony that an injury was reasonably likely to occur
because the power cord was next to a travelway where maintenance is
performed by miners. Tr. 106, 122-123.
The fourth Mathies element requires a
reasonable likelihood that a resulting injury will be reasonably serious.
Respondent argued that a miner exposed to the damaged part of the power
cord would not be fatal because the primary insulation was still present
and that part of the wet plant was locked and tagged out. Tr. 361.
The inspector testified that the multiple hazards in the 480-volt power
cord made it reasonably likely a miner traveling in the area could be
fatally electrocuted if they were to brush up against the exposed hazards.
Tr. 113-114,117. Inspector Frey stated that the fatalgrams referenced
in Citation No. 8693966 also would apply for this citation as well because
a miner coming into contact with a 480-volt power cord would cause serious
injury or death. Tr. 121
As the evidence produced at hearing
supports all four elements of the Mathies formula, I find that
the Secretary has established that Citation No. 8693968 was an S&S
violation.
- Negligence
Inspector Frey testified that the
multiple hazards he observed on a 480-volt power cable were obvious when
he walked along the travelway. Tr. 122-123. The inspector believed
that the operator should have known about the multiple hazards because
it was an area where adequate workplace examinations should have been
taking place and a frequent area where miners travel. Tr. 122-125.
Frey also noted that the mine had no documentation that recognized the
electrical hazards and there was no evidence of repair to the 480-volt
power cord. Tr. 122.
According to the inspector, an
adequate workplace examination did not occur based on the number of hazards
identified on the 480-volt power cable. Tr. 123. I credit the inspector’s
testimony that he believed the electrical damage existed since the last
workplace examination of the travelway. Tr. 123. Inspector Frey also
stated that Respondent had been operational two weeks prior to the issuance
of the citation and in his view there were no mitigating circumstances.
Tr. 114-115, 123.
Finally, the inspector factored
into account that the operator told him that the foreman performing workplace
exams or electrical maintenance was not competent. Tr. 122. Walker
testified to the contrary, and avowed that he never told the inspector
the foreman was not competent and clarified that the foreman in question
was actually his son Ryan Walker who was the last one that had performed
electrical work at the mine prior to the inspection. Tr. 335. It
is important to note Ryan Walker left Respondent’s employment at the
mine in late 2011 or early 2012, no less than a year prior to the
inspection at issue. While I found Operator Walker’s reliance on his
son’s competence in performing electrical work a mitigating factor in
Citation 8693966 above no such mitigating factor exists here because the
damage to the 480-volt power cable was open and obvious to anyone that
would be travelling along the pathway. Respondent should have noticed
the damage and taken immediate action to have the cable repaired. The
fact that they failed to do so leads me to conclude that the inspector’s
high negligence level designation is appropriate.
For all these reasons, I find
that Citation No. 8693968 was the result of high negligence. Although
the inspector relied partially on his conversation with the operator about
the foreman’s competency when determining negligence, I find that this
testimony is a non-factor for the high negligence designation. I credit
the inspector’s testimony that the hazard was obvious because it was
in a travelway where miners frequently pass. And, adequate workplace
inspections would have allowed the electrical hazards to be observed,
noted, and repaired. Therefore, the negligence designation for Citation
No. 8693968 is upheld at high.
- Penalty
Assessment
The Secretary has proposed a regularly
assessed penalty of $807.00. Respondent’s past history of previous violations
revealed that the mine has a total of seven past violations and no
repeated violations of 56. 12004. Sec’y Ex. P-1. I upheld the high
negligence designation for this citation because the inspector testified
that he observed multiple electrical hazards along a 480-volt power cable
that was immediately adjacent to a travel way where miners travel and
perform maintenance. Tr. 122-125. Although the operator, in good faith,
believed a competent person was performing the electrical maintenance,
the multiple electrical hazards on the 480-volt power cable demonstrates
that adequate workplace inspections were not conducted. Even though the
citation was terminated based upon a seasonal closure and shutdown of
the mine, Christopher Morley testified to repairing most of the electrical
hazards cited by Inspector Frey in this docket. Tr. 389-396.
After considering all six penalty
criteria analyzed earlier in this decision, I uphold the Secretary’s proposed
penalty and assess Respondent a civil monetary penalty of $807.00 for
Citation No. 8693968.
E. Citation
No. 8693970
Inspector Frey issued Citation No. 8693970
on August 19, 2013 for an alleged violation of 30 CRF 56. 12013.
Tr. 155. The inspector alleged within the citation that:
A mechanically strong, insulated and sealed splice was
not used in connecting the 480-volt 3 phase well pump to cable that
powers it. Additionally the ground wire was not connected and hanging
in the open. A miner coming into contact with energized 3 phase electrical
circuits could experience severe shocks, burns, or other fatal electrical
injuries and complications.
Standard 56. 12013 was cited 1 time in two years at
mine 5001783 (1 to the operator, 0 to a contractor).
Sec’y Ex. 8.
Frey determined that the violation was reasonably
likely to cause an injury, the resulting injury would be fatal, the
violation was S&S, affected one person, and was the result of Respondent’s
high negligence. Sec’y Ex. 8. The Secretary has proposed a penalty
of $807.00.
- Findings
Inspector Frey issued Citation No. 8693970,
because he determined that a splice connected to a 480-volt 3 phase
well pump was in violation of 30 CFR § 56. 12013 which mandates that:
Permanent splices and repairs made
in power cables, including the ground conductor where provided, shall
be:
(a)
Mechanically strong with electrical conductivity as near as possible
to that of the original;
(b)
Insulated to a degree at least equal to that of the original,
and sealed to exclude moisture; and
(c)
Provided with damage protection as near as possible to that of
the original, including good bonding to the outer jacket.
Frey testified that Respondent used
a splice to connect a 480-volt 3 phase well pump to a power cord.
Tr. 156. The inspector stated that the splice connected the two cords
with the use of wire nuts and electric tape. Tr. 156-157. Frey testified
that the green grounding wire was not connected to anything and should
have been connected to a grounding system. Tr. 157. The inspector
testified that the black, green, red, and yellow inner conductors wrapped
around the well pump were exposed to mechanical damage. Tr. 158.
The inner conductors were not protected by housing and there was no
outer jacket sheath. Tr. 157. The inspector stated that the splice
violated the standard because wire nuts are not mechanically strong with
electrical conductivity as near as possible to that of the original.
Tr. 156, 158. Also, the inspector testified that the splice was not
bonded in a way to prevent moisture from infiltrating the inner conductors.
Tr. 160.
Frey believed that moisture could
infiltrate the splice because it was not encased in an outer jacket,
outdoor rated housing, or other conduit. Tr. 159-160. I defer to
and credit the inspector’s testimony that the grounding wire was not
properly grounded and that the splice was exposed to mechanical damage.
Respondent attempted to address this violation through testimony from electrical
witness Morley. However, I found his testimony confusing and focused
primarily on the grounding issue stating that the pump was grounded at
other points while acknowledging that the green grounding wire was not
connected. Tr. 397. Furthermore, Morley acknowledged there was no outer
jacket to which the splice could be bonded. Tr. 427. As such, I
find that Respondent violated 30 CRF 56.12013 by failing to connect a
480-volt power cable that was mechanically strong and insulated to a
degree that would exclude moisture. Citation No. 8693970 is AFFIRMED.
However, for reasons explained below the negligence level will be modified
from high to moderate.
- Gravity
Inspector Frey designated Citation
No. 8693970 as an S&S violation. The first element of the Mathies
test requires a violation of a mandatory safety standard, and I have
already found that the failure to connect a 480-volt 3 phase well pump
to a power cable with use of a mechanically strong and insulated splice
was a violation of 30 CFR § 56. 12013. The second Mathies element
is a contribution to a discrete safety hazard. By failing to remedy
the deficient splice that potentially existed since the fall of 2011,
Respondent exposed miners to possible severe shocks, burns, or other fatal
electrical injuries. Tr. 57, 353.
The third Mathies element
requires showing a reasonable likelihood that the hazard contributed to
will result in an injury. Inspector Frey testified that the wire nuts
and electric tape used to splice the well pump were not mechanically
strong and not bonded or sealed to exclude moisture. Tr. 156. Also,
the inspector stated that the splice was not insulted equal to its original
condition and was not bonded to the cable outer jacket to prevent moisture.
Tr. 156-157. Frey testified that water can easily infiltrate the splice
through the wire nuts where there are exposed conductors. Tr. 160.
Furthermore, Frey noted that the green grounding wire was not attached,
and that a continuity and resistance test had not been performed during
the year the citation was issued. Tr. 157. The inspector believed
that the lack of a grounded wire with no continuity and resistance test
made it more likely that if a miner touched the splice they would be
the least resistance to ground where electrocution could be fatal. Tr.
156-160. Additionally, the inspector testified that the splice was an
obvious hazard that was in plain sight when he approached the water
pump. Tr. 158. Frey stated that the splice was adjacent to a travelway
and surge tunnel used by miners. Tr. 162-163. Thus, miners were regularly
exposed to the deficient splice. Id. Inspector Frey believed
that the hazard existed when the wet plant was last run and would likely
continue to exist during mining operations because multiple deficient splices
were noted over the course of the initial inspection of the mine.
Tr. 57. The operator acknowledged that the splice had existed in its
cited condition since Ryan Walker installed the splice more than a year
before the citation was issued. Tr. 483-484. Finally, Inspector Frey
testified that no work place examinations noted the inadequate splices
throughout the mine. Tr. 168.
Respondent argues that the violation
was not reasonably likely to lead to a significant injury because according
to Morley, the splice was sufficiently protected against electrical shock
Tr. 457. He testified that the wire nuts coupled with the electrical
tape provided a moisture resistant connection. Tr. 405. Also, Morley
stated that although the green wire was not grounded, there was a ground
bar on the water pipe. Tr. 397. He believed that the generator that
powers the 480-volt 3 phase well pump would trip if the splice’s inner
conductors were exposed to moisture. Tr. 400. Morley also acknowledged
that the splice was not protected from damage as near as possible to
the original and that he would have enclosed the splice in a raceway
or enclosure. Tr. 426-427. I defer to and credit the inspector’s
straight forward, detailed testimony that it was reasonably likely a significant
injury would occur because the deficient splice was an electrical hazard
and was in a location frequently traveled by miners.
The fourth Mathies element
requires a reasonable likelihood that a resulting injury will be reasonably
serious. Inspector Frey testified that under the right circumstances
a miner coming into contact with the splice would be potentially fatal
because the power cord was 480 volts. Tr. 59. The inspector also
testified to five separate fatalgrams, each showing that a 480-volt shock
can be fatal. Tr. 60. The inspector stated that the fatalgrams indicate
that 480-volt electrical systems are dangerous and need to be installed
and maintained in order to prevent exposure to fatal amounts of electricity.
Tr. 61. Morley, Respondent’s electrical witness acknowledged that contact
with a 480-volt power cord could be fatal. Tr. 421. Therefore, considering
the above evidence there is a reasonable likelihood that an electrical
shock coming from the splice would cause serious injury or death to
a miner.
As the evidence produced at hearing
supports all four elements of the Mathies formula, I find that
the Secretary has established that Citation No. 8693970 was an S&S
violation.
- Negligence
Inspector Frey testified that the
splice connecting a 480-volt 3 phase well pump to a power cord was
immediately obvious when walking past the well pump. Tr. 167-168.
Frey credibly testified and noted that there were multiple deficient splices
throughout the mine that were similar to the cited splice. Tr. 57.
He believed that the splices were made this way intentionally and that
it was common practice at the Delta Junction mine to splice using wire
nuts and electric tape. Tr. 57. I find that Respondent was aware
or should have been aware of the violation based on the number of deficient
splices noted by inspector Frey. Tr. 57. I credit the inspector’s
testimony when he testified that there was no documentation identifying
any electrical hazards and that he believed the hazard would continue
to exist during continued mining operations. Tr. 164-168. When Walker,
the operator, was asked whether the deficient splices would have continued
to exist at the mine had the operator not been cited, he acknowledged
that they would have continued to exist. Tr. 487.
As I noted above in reference
to Citation 8693966 I credit the operator’s testimony that his son, Ryan
Walker, was likely the foreman at the time when the splices were made.
Tr. 335. The inspector believed that based on his conversations with
the operator, the foreman was not competent to perform electrical maintenance
at the mine. Tr. 64. The analysis for this citation mirrors that
of Citation 893966. As such, I find that the operator reasonably and
in good faith believed a competent person was performing the electrical
maintenance, and credit his testimony based on his personal observations
of Ryan’s work with electrician Hamilton. Walker’s reasonable belief
is a mitigating factor.
For all these reasons, I find
that Citation No. 8693970 was the result of moderate negligence on the
part of Respondent, as they should have been aware of the violation,
but I credited the operator’s testimony that he made a good faith effort
to assign a competent person to perform electrical maintenance at the
mine which constitutes a mitigating circumstance.
- Penalty
Assessment
The Secretary has proposed a regularly
assessed penalty of $807.00. Respondent’s past history of previous violations
revealed that the mine has a total of seven past violations and no
repeated violations of 56. 12004. P-1. Walker, the operator testified
that Respondent was a small mom and pop operation with 15 current employees
at the time the citation was issued. Tr. 301. Respondent has not
argued or presented any evidence indicating that the proposed penalty
would affect its ability to continue business operations.
Although the inspector designated
the citation as high negligence, I found that the mine was moderately
negligent because the operator, in good faith, believed a competent person
was performing the electrical maintenance. Respondent was negligent because
the inspector testified that the deficient splice located on the water
pump was obvious, not documented, and would have likely continued to
exist at the mine based on the number of electrical hazards cited as
well as Walker’s admission that the violation would have continued to
exist had the inspector not issued a citation. Tr. 57, 64, 164-168,
487. Much like the other electrical citations, there was a reasonable
likelihood that a resulting injury would be reasonably serious because
a miner coming into contact with the splice could have easily been killed
because the power cord was 480 volts. Tr. 59. Although the citation
was terminated based upon a seasonal closure and shutdown of the mine,
Christopher Morley testified to repairing most of the electrical hazards
cited by Inspector Frey. Tr. 389-396.
After considering all six penalty
criteria as analyzed earlier in this decision as well as Respondent’s
reliance on MSHA’s pronouncements from prior inspections, I am modifying
the Secretary’s proposed penalty of $807.00 and assess Respondent a civil
monetary penalty of $400.00 for Citation No. 8693970.
F. Citation
No. 8693978
Inspector Frey issued Citation No. 8693978
on August 23, 2013 for an alleged violation of 30 CRF 56.12028. Tr.
255. The inspector alleged within the citation that:
Records of ground continuity testing
for Delta Concrete were unable to be reviewed upon request and could
not be verified. Grounding systems are in place and have been tested
in the past. The last inspector noted that ground testing had been
performed in March of 2012. Ground system testing would have identified
that the well pump ground wire was not connected as noted during this
inspection. A miner that became a path to ground for a three phase
480-volt electrical system as is used at this mine could suffer shocks,
burns, and other fatal electrical injuries and complications.
Sec’y Ex. P-12.
Frey determined that the violation was reasonably
likely to cause an injury, the resulting injury would be fatal, the
violation was S&S, affected one person, and was the result of Respondent’s
high negligence. Sec’y Ex. 12. The Secretary has proposed a penalty
of $807.00.
- Findings
Inspector Frey issued Citation No.
8693978, because he determined that Respondent had not performed a ground
continuity test annually and the operator was unable to provide test
records upon request in violation of 30 CFR § 56.12028 which mandates
that:
Continuity and resistance
of grounding systems shall be tested immediately after installation, repair,
and modification; and annually thereafter. A record of the resistance
measured during the most recent tests shall be made available on a request
by the Secretary or his duly authorized representative.
Frey testified that
he issued Citation No. 8693978 because Respondent failed to produce a
record of a ground continuity test upon request. Tr. 256. The inspector
testified that he was able to determine that the last ground continuity
test was done in March of 2012 by referencing a previous inspector's
notes. The citation was issued on August 23, 2013, which indicates
that a ground continuity test had not been performed annually. Tr.
271. Frey stated that he did not personally observe any records of
testing. Tr. 260. Additionally, the electrical hazards found at Delta
Concrete provided further evidence that a ground continuity test had not
been performed annually. The inspector believed this to be the case
because the well pump ground wire was not attached to anything and a
ground continuity test would have recognized this hazard. Tr. 260.
Frey also stated that the other electrical hazards cited at Delta Concrete
gave him reason to believe that a ground continuity test had not been
performed at all within the last year. Tr. 264.
I credit the inspector’s testimony
that Respondent failed to produce a record of a ground continuity test
upon request. Also, I credit Frey’s testimony that a continuity and
resistance test was last conducted March of 2012, which is more than
one year before the citation was issued on August 23, 2013. As such,
I find that Respondent violated 30 CRF 56.12028 because Respondent failed
to produce any records indicating a continuity and resistance test had
been performed and that a test had not taken place annually since March
of 2012. Citation No. 8693978 is AFFIRMED.
- Gravity
Inspector Frey designated Citation
No. 8693978 as an S&S violation. The first element of the Mathies
test requires a violation of a mandatory safety standard, and I have
already found that the failure to provide prior records of a continuity
and resistance test and not performing a test annually since March of
2012 was in violation of 30 CFR § 56.12028. The second Mathies
element is a contribution to a discrete safety hazard. By failing to
conduct a continuity and resistance test it is reasonably likely that
a miner coming into contact with the energized wire or exposed moisture
will become the lowest resistance to ground and be electrocuted. Tr.
59-61.
The third Mathies element
requires showing a reasonable likelihood that the hazard contributed to
will result in an injury. Inspector Frey testified that he had no
reason to believe that a ground continuity and resistance test had been
performed based on the electrical hazards found at Delta Concrete. Tr.
261. Frey stated that he was particularly concerned about the non-grounded
well pump splice that would not provide a low-resistance path to ground.
Tr. 262. Had a continuity and resistance test been performed it would
have detected the electrical hazards present at Delta Concrete. Tr.
263. Also, he stated that most of the hazards cited were open and
obvious. Tr. 264-265. Frey testified that it is likely the operator
would have continued to operate the wet plant without a continuity and
resistance test being performed and the various electrical hazards would
continue to exist. Tr. 267.
The fourth Mathies element
requires a reasonable likelihood that a resulting injury will be reasonably
serious. Inspector Frey testified that under the right circumstances
a miner coming into contact with a defective splice or power cord would
be potentially fatal because most of the defective hazards had electrical
capacity up to 480 volts. Tr. 59. The inspector also testified to
five separate fatalgrams, each showing that a 480-volt shock can be fatal.
Tr. 60. The operator, Walker, testified that he believed the lack of
a continuity and resistance test would not be fatal because the mine
was not in production. Tr. 461. I have already addressed Respondent’s
argument regarding Respondent’s operational defense earlier in this decision.
Accordingly, I credit the inspector’s testimony that it is reasonably
likely that contact with 480 volts would be fatal. Tr. 265, P-3.
As the evidence produced at hearing
supports all four elements of the Mathies formula, I find that
the Secretary has established that Citation No. 8693978 was an S&S
violation.
- Negligence
The inspector testified that the
operator conducted continuity resistance tests in the past and knew the
tests had to be completed annually. Tr. 266. Frey also testified
that the operator did not meet the standard in providing records of
past or present continuity and resistance tests. Tr. 266. The inspector
stated that the numerous hazards present during the inspection gave him
reason to believe that a test had not been performed within the last
year. Tr. 266. Walker, the operator, also acknowledged that he did
not conduct a continuity and resistance test because he was waiting a
couple months so he could have more time to conduct the subsequent annual
test at a later date. Tr. 459-461.
For all these reasons, I find
that Citation No. 8693978 was the result of high negligence on the part
of Delta Concrete, as they should have been aware of the violation because
the operator knew a continuity and resistance test had to be performed
annually and that documentation of previous tests must be available at
MSHA’s request. I credit the inspector’s testimony that no continuity
and resistance test had been performed since March 2012 and that no
documentation of previous tests was provided to Inspector Frey. Tr.
260-267. Therefore, the negligence designation for Citation No. 8693978
is upheld as high.
- Penalty
Assessment
The Secretary has proposed a regularly
assessed penalty of $807.00. Respondent’s past history of previous violations
revealed that the mine has a total of seven past violations and no
repeated violations of 56. 12028. Sec’y Ex. P-1. After considering
all six penalty criteria as explained more fully earlier in this decision,
I uphold the Secretary’s proposed penalty and assess Respondent a civil
monetary penalty of $807.00 for Citation No. 8693978.
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
OTHER VIOLATIONS
A. Citation
No. 8693969
Inspector Frey issued Citation No.
8693969 on August 19, 2013 for an alleged violation of 30 CRF 56.11027.
Tr. 134. The inspector alleged within the citation that:
The handrail on the washplant
operator’s station has not been maintained. The corner post on the
right side of the ladder landing has popped welds and flaps. This
corner serves both as a fixed point for the swing gate atop the landing
and as the hand hold extending above the working platform when climbing
the ladder for access. The working platform is 6 feet from the washplant
deck and a fall to the ground would be 20 feet. This area is subject
to weather and operational conditions that can make it wet and slippery.
A miner falling from this height while accessing or atop the working
platform could suffer fatal injuries and complications.
Sec’y Ex. 6.
Frey determined that the violation was reasonably
likely to cause an injury, the resulting injury would be fatal, the
violation was S&S, affected one person, and was the result of Respondent’s
moderate negligence. Sec’y Ex. 5. The Secretary has proposed a specially
assessed penalty of $243.00.
- Findings
Inspector Frey issued Citation No. 8693969,
because he determined that the southwest handrail on the washplant operator’s
station had not been maintained in good condition and was in violation
of 30 CFR § 56.11027 which mandates that:
Scaffolds and working
platforms shall be of substantial construction and provided with handrails
and maintained in good condition. Floor boards shall be laid properly
and the scaffolds and working platforms shall not be overloaded. Working
platforms shall be provided with toeboards when necessary.
Frey testified that
the cited handrail was located on the southwest side of the washplant
operator’s station. Tr. 136, 149. He observed a broken bottom corner
post weld that caused the handrail to freely move. Tr. 136. The
loose handrail was next to the access ladder, so the handrail would
be a point of contact for a miner climbing up the ladder to the operator’s
station. Tr. 137. The operator’s station was six feet down from the
wash plant deck and 20 feet from the ground. Tr. 136. Also, the
inspector testified that the weld appeared to have popped due to continued
vibration. Tr. 136. Walker, the operator, acknowledged that the handrail
had a broken bottom corner weld. Tr. 497-498.
According to the testimony of the
inspector, the standard was violated because the handrail was not maintained
in good condition. Tr. 137. I credit the inspector’s testimony where
he testified that the broken right corner weld allowed the vertical bar
to move up and down and was no longer connected to anything. Tr.
137. He also observed marks on the metal where it was
rubbing at the bottom of the railing. Tr. 136. Frey stated
that the vertical end piece was hanging below the angle iron where it
used to be welded. Tr. 137. As such, I find that Respondent violated
30 CRF 56.11027 by failing to maintain a working platform in good condition.
Citation No. 8693969 is AFFIRMED.
- Gravity
Inspector Frey designated Citation
No. 8693969 as an S&S violation. The first element of the Mathies
test requires a violation of a mandatory safety standard, and I have
already found that the failure to maintain a working platform was a
violation of 30 CFR § 56. 11027. The second Mathies element
is a contribution to a discrete safety hazard. By failing to repair
the handrail on the wash plant operator’s station,
Respondent exposed miners to a potential fall hazard. Tr. 138.
The third Mathies
element requires showing a reasonable likelihood that the hazard contributed
to will result in an injury. Both parties testified that the wash
plant operator’s station is a working platform for miners to operate
the wet side screen deck. Tr. 140, 498. The inspector noted that
the markings from the vertical bar hitting the angle iron indicated that
the wet side screen deck had been operational without the hazard being
corrected. Tr. 141. According to the inspector, this indicated that
the plant was running at some point after it was broken. Tr. 141.
The inspector believed because the handrail was able to freely move,
a miner could not safely use it for support while climbing up the ladder
or as point of contact without the potential of falling. Tr. 137-138,
143. Walker, the operator testified that a miner must go up onto the
operator’s tower to operate the wet plant. Tr. 498. The inspector
believed the broken handrail would continue to exist during continued
mining operations because the defective handrail should have been noted
in a workplace examination but was never documented. Tr. 141. Frey
also testified that the washplant operator’s station
was exposed to weather conditions which increased the likelihood of a
miner falling. Tr. 154.
The fourth Mathies element
requires a reasonable likelihood that a resulting injury will be reasonably
serious. Inspector Frey testified that if a miner were to fall from
the top of the wash plant operator’s station, the fall would either
be six feet down to the washplant deck or 20 feet down
to the ground. Tr. 136. The inspector believed that either fall would
be potentially fatal. Tr. 153-154. Respondent argued that it would
be very unlikely that a miner could fall past the wash plant deck to
the ground and that a fall to the wash plant deck would not be fatal.
Tr. 466. The inspector testified that if a miner were climbing the
ladder it would be more likely that a miner would miss the wash plant
deck and fall to the ground. Tr. 138, 153-154. Inspector Frey also
testified about two fatalgrams, which showed that miners can be fatally
injured from falls of nine feet and sixteen feet. Tr. 144-145. I
defer to and credit Frey’s straight forward and detailed testimony that
there is a reasonable likelihood a resulting injury would be reasonably
serious if a miner were to fall from the wash plant operator’s station
to the ground or wash plant deck.
As the evidence produced at hearing
supports all four elements of the Mathies formula, I find that
the Secretary has established that Citation No. 8693969 was an S&S
violation.
- Negligence
Frey believed that the defective
handrail was readily apparent because a miner doing a workplace inspection
or climbing up to the wash plant operator’s station should
have noticed the hazard. Tr. 147. The inspector testified that the
marks where the vertical bar was rubbing against the platform indicated
that the wet side screen deck had been operational without the hazard
being corrected. Tr. 141. Also, inspector Frey noted that the broken
handrail was not noted in a workplace examination and no safeguards were
put in place to indicate it had been identified. Tr. 143,147. Accordingly,
he acknowledged that the weld could have broken when the plant was last
in operation and considered this a mitigating factor thus assessing the
negligence level as moderate. Sec’y Ex. P-6, p. 1.
Respondent argued that a drop down
bar connects the southwest railing once a miner reaches the top of the
operator’s station and manually swings it down. Tr. 152. Inspector
Frey testified that because the southwestern bottom corner weld was broken,
the drop down bar would not function as intended and would not help
a miner climbing up the ladder. Tr. 152. Additionally, the inspector
testified that the swing gate for the working platform did not work
properly and made the cited condition more obvious. Tr. 143. Again,
I find Frey’s testimony straight forward, detailed, articulate and persuasive
meriting credit and deference over that of Respondent’s arguments.
For all these reasons, I find
that Order No. 8693969 was the result of moderate negligence on the
part of Respondent, as they should have been aware of the violation
because the handrail was not maintained and the operator’s station is
frequently used by miners to operate the wet side screen deck. Tr.
143. Therefore, the negligence designation for Order No. 8693969 is
upheld at a moderate level.
- Penalty
Assessment
The Secretary has proposed a regularly
assessed penalty of $243.00. Respondent’s history of previous violations
revealed that the mine has a total of seven past violations and no
repeated violations of 56. 11027. P-1. Walker, the operator, testified
that Respondent is a small mom and pop operation with 15 current employees
at the time the citation was issued. Tr. 301. Respondent has not
argued or presented any evidence indicating that the proposed penalty
would affect its ability to continue business operations. I upheld the
moderate negligence designation for this citation because the defective
handrail was able to freely move and a miner could not safely use it
for support while climbing up the ladder without the potential of falling.
Tr. 137-138, 143. The defective handrail created a reasonable likelihood
of injury because a miner must go up the ladder onto the operator’s
tower to operate the wet plant. Tr. 498. According to the record,
the citation was terminated based upon a seasonal closure and shutdown
of the mine.
After considering all six penalty
criteria and relying on my penalty analysis earlier in this decision,
I uphold the Secretary’s proposed penalty and assess Respondent a civil
monetary penalty of $243.00 for Citation No. 8693969.
B. Citation No. 8693974
Inspector Frey issued Citation No. 8693974
on August 19, 2013 for an alleged violation of 30 CRF 56.9303. Tr.
180. The inspector alleged within the citation that:
The grizzly ramp wall adjacent
to the plant feed conveyors is unstable and has multiple concrete clocks
in the process of toppling as ramp material thrusts them outward. Miners
travel below the wall to maintain and grease the conveyors and as an
access to the Surge tunnel. If the wall were to fail, a miner in the
adjacent travelway could be fatally crushed.
Sec’y Ex. 9.
Inspector Frey determined that the
violation was reasonably likely to cause an injury, the resulting injury
would be fatal, the violation was S&S, affected one person, and was
the result of Respondent’s moderate negligence. Sec’y Ex. P-9. The
Secretary has proposed a penalty of $243.00.
- Findings
Inspector Frey issued Citation No. 8693974,
because he determined that a grizzly ramp wall adjacent to the plant
feed conveyors was unstable where he observed multiple concrete blocks
that were in the process of toppling. He found this condition to be
a violation of 30 CFR § 56.9303 which mandates that:
Ramps and dumping
facilities shall be designed and constructed of materials capable of supporting
the loads to which they will be subjected. The ramps and dumping facilities
shall provide width, clearance, and headroom to safely accommodate the
mobile equipment using the facilities.
The Respondent constructed
a ramp to a grizzly storage bin where large vehicles dump gravel into
a grizzly that funnels the gravel onto a feed conveyor located in a
surge tunnel under the ramp. Tr. 183. Frey testified that the grizzly
ramp wall was not capable of supporting the weight of the materials
above the ramp. Tr. 182. The inspector observed that material was
sloughing into the roadway past a stack of ecology blocks which were
in the process of toppling and being thrust forward by the material
that was falling down the grizzly ramp. Id., Sec’y Ex. P-9.
Also, Frey stated that the retaining wall under the ramp was cracked
and leaning outward. Tr. 185. The inspector also noted that at
the top of the grizzly ramp there was a k-rail highway style divider
that was sloughing down the side of the ramp. Tr. 180-185. Frey
testified that the ecology blocks and k-rail created a hazard to miners
because the material falling down the ramp could cause them to topple
down into the walkway. Tr. 182. Respondent denied that the blocks
were in the process of toppling and asserted that the blocks were purposefully
installed in a toppled fashion to hold the bank down from erosion.
Tr. 439, 441-442, Sec’y Ex. P-9.
According to the inspector, the
standard was violated because the grizzly ramp wall was unstable and
multiple concrete blocks were in the process of toppling as ramp material
thrust them outward. Tr. 182-189. I defer to and credit the inspector’s
testimony that the grizzly ramp was not capable of supporting the loads
to which it was subject because the falling material was thrusting hazards
outward. The inspector believed that eventually the material would
thrust the multiple hazards outward and into the travelway. Tr. 186.
The photos taken by the inspector show the toppled ecology blocks with
k-rails that appear to have been displaced due to sloughing of ground
material. Sec’y Ex. 9. I concur with his belief based on his direct
observation and photos of the condition. As such, I find that Respondent
violated 30 CRF 56.9303 by failing to stabilize a grizzly ramp wall
that was not able to support the load to which it was
subjected. Citation No. 8693974 is AFFIRMED.
- Gravity
Inspector Frey designated Citation
No. 8693974 as an S&S violation. I have already found that the
failure to stabilize a grizzly ramp wall was in violation of 30 CFR
§ 56. 9303 thus meeting element one of the Mathies test. The
second Mathies element is a contribution to a discrete safety hazard.
By failing to stabilize the grizzly ramp wall, Respondent exposed miners
to crushing injuries from ecology blocks toppling or material sloughing
off the ramp. Tr. 182, 191.
The third Mathies element
requires showing a reasonable likelihood that the hazard contributed to
will result in an injury. Inspector Frey testified that miners were
exposed to the ecology blocks and sloughing material because they have
to access the travel way to perform maintenance, repair, inspection, cleanouts,
and to access the surge tunnel. Tr. 193. The inspector testified
that eventually, with continued mining operations, the ecology blocks would
topple into the travel way, the k-rails would slough into the travel
way, and gravel would slough into the travel way. Tr. 191. Also,
Frey stated that there could be a landslide of debris if the retaining
wall or ecology blocks failed to hold back the material on the grizzly
ramp. Tr. 191. The inspector also testified that the vibration from
mobile equipment around the ramp would cause material to move down the
ramp quicker and would eventually cause the grizzly ramp to fail. Tr.
191-192. Frey also observed that the grizzly ramp hazard was obvious
when he walked up the travel way. Tr. 190. He noted that the ramp
hazard would likely continue to exist into the future because the ramp
failure was not recognized in any workplace examinations. Tr. 190-193.
According to the inspector, the operator was unaware of the state of
the grizzly ramp wall. Tr. 190.
Respondent argued that the violation
was not reasonably likely to lead to a significant injury because the
ecology blocks, k-rails, or gravel material would not slough off in a
way that would lead to a significant injury. Tr. 439-446. The operator
testified that the ecology blocks were locked in place because of a
v-notch at the bottom of every block. Tr. 442. Walker avowed that
neither the ecology blocks nor k-rails had moved at all since they were
installed to hold back material on the grizzly ramp. Tr. 443. He
also testified that even though the retaining wall under
the ramp was cracked, it was reinforced with rebar. Tr. 444. I
defer to and credit the inspector’s straight forward and compelling testimony
that it was reasonably likely the ecology blocks, k-rails, or gravel
material sloughing off the ramp would lead to a significant injury because
his observations are clearly supported by the photos he took. Tr. 194,
Sec’y Ex., P-9.
The fourth Mathies element
requires a reasonable likelihood that a resulting injury will be reasonably
serious. The inspector testified that he was concerned that a miner
could be crushed or struck by an ecology block or k-rail falling down
the slope of the ramp. Tr. 194. I share his concern and find it is reasonably likely the ecology blocks, k-rails, or gravel
material sloughing off the ramp would lead to fatal crushing injuries.
Tr. 193-194.
As the evidence produced at hearing
supports all four elements of the Mathies formula, I find that
the Secretary has established that Citation No. 8693974 was an S&S
violation.
- Negligence
Inspector Frey testified that he
was worried about continued mining operations because the grizzly ramp
had probably degraded over time and the hazards were not recognized by
the operator. Tr. 193. The inspector believed the hazards on the
grizzly ramp had not been recognized because the area was not cordoned
off to prevent access and there was no workplace examination identifying
the hazards. Tr. 193. Frey also testified that the toppling ecology
blocks, sloughing k-rails, and cracked retaining wall were obvious signs
that the ramp was failing. Tr. 195. However, he also acknowledged
that the deterioration progressed slowly thus “kind of working itself
into the background” on not being noticed. Tr. 195.
For all these reasons, I find
that Citation No. 8693974 was the result of moderate negligence on the
part of Delta Concrete, as they should have been aware of the violation
because the toppled ecology blocks and sloughing material were obvious
and next to a travel way where sufficient workplace examinations should
have been taking place. Tr. 143. I find the slow progression of the
deterioration to be a mitigating factor leading one to believe immediate
attention was not necessary. Therefore, the negligence designation for
Citation No. 8693974 is upheld at moderate.
- Penalty
Assessment
The Secretary has proposed a regularly
assessed penalty of $243.00. Respondent’s past history of previous violations
revealed that the mine has a total of seven past violations and no
repeated violations of 56. 9303. Sec’y Ex. P-1. Walker, the operator
testified that Respondent is a small mom and pop operation with 15 current
employees at the time the citation was issued. Tr. 301. Respondent
has not argued or presented any evidence indicating that the proposed
penalty would affect its ability to continue business operations. I
upheld the moderate negligence designation for this citation because the
toppling ecology blocks, sloughing k-rails, and cracked retaining wall
were obvious signs that the grizzly ramp was failing. Tr. 195. I
found that it was reasonably likely the ecology blocks, k-rails, or gravel
material sloughing off the ramp could lead to a significant injury to
a miner. Tr. 194. According to the record, the citation was terminated
based upon a seasonal closure and shutdown of the mine.
After considering all six penalty
criteria and noting the penalty analysis earlier in this decision, I
uphold the Secretary’s proposed penalty and assess Respondent a civil
monetary penalty of $243.00 for Citation No. 8693974.
C. Citation
No. 8693975
Inspector Frey issued Citation No.
8693975 on August 23, 2013 for an alleged violation of 30 CRF 56.18002a.
Tr. 180. The inspector alleged within the citation that:
A competent person has not been
performing workplace exams at least once per shift at Delta Concrete
based upon the number of discrete safety hazards found during inspection
and the length of time necessary for them to accumulate. A miner performing
their duties could be fatally injured if exposed to a hazard that should
have been found and corrected in an examination of working places.
Sec’y Ex. 10.
Frey determined that the violation was reasonably
likely to cause an injury, the resulting injury would be fatal, the
violation was S&S, affected one person, and was the result of Respondent’s
high negligence. Sec’y Ex. 10. The Secretary has proposed a penalty
of $807.00.
- Findings
Inspector Frey issued Citation No. 8693975,
because he determined that a competent person had not been performing
workplace exams at least once per shift at Delta Concrete. This was
in violation of 30 CFR § 56.18002a which mandates 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.
A competent person according to 56.2 is “a
person having abilities and experience that fully qualify him to perform
the duty to which he is assigned.” 30 C.F.R. § 56.2. MSHA’s Program
Policy Manual states a competent person is “any person who, in the judgment
of the operator, is fully qualified to perform the assigned task. MSHA
does not require that a competent person be a mine foreman, mine superintendent,
or other person associated with mine management.” Sec’y Ex., P-19.
Inspector Frey testified that there was evidence
that mining related activities had occurred on days where there was no
record of examination. Tr. 214. After inspecting Delta Concrete, inspector
Frey stated that the number of hazards identified led him to question
the competency of the person performing those inspections. Tr. 214.
The operator acknowledged that at the time they were cited, Respondent
was not conducting competent person inspections every shift as required
by 56.18002a. Tr. 474. The inspector stated that there were missing
records of examinations for when work would have been performed based
upon looking at production reports. Tr. 217. Inspector Frey noted
that most of the hazards cited at the mine were open and obvious hazards
that should have identified by sufficient workplace examinations. Tr.
214.
The inspector noted no less than
four citations where he believed the operator should have discovered the
hazards during a previous workplace examination. Tr. 216. For Citation
Nos. 8693966 and 8693970, the operator should have discovered the inadequate
splices during workplace examinations because the splices were open and
obvious and a competent miner would have spotted the hazard. Tr. 216-219.
For Citation No. 8693968, the operator should have observed the damaged
480-volt cable adjacent to a travel way during a workplace examination
because the damage had existed for a significant period of time based
on the amount of damage to the cable. Tr. 217-218. Lastly, for Citation
No. 8693969, the operator should have observed the defective handrail
during a workplace examination because a reasonable miner would have noticed
it while climbing up to the operator’s station. Tr. 219.
I credit the inspector’s testimony
that the hazards were extensive and had most likely existed for a significant
period of time demonstrating that inadequate work place examinations had
taken place while the plant was operational. Tr. 215. Respondent argued
that there was a communications failure between Inspector Frey and Operator
Walker regarding who was responsible for workplace examinations. Walker
avowed that as owner operator he was the competent person who was responsible
for the exams while Frey believed Crusher Operator Jimmy Hanlon was responsible.
Tr. 334-335, 127, 129-130, 217. Respondent further asserted he believed
workplace exams were required for operation days only and not maintenance
days. Tr., 473-474. Regardless of the alleged communication issues
I find sufficient evidence to conclude that there was a lapse in required
workplace exams due to the absence of exam records and the fact that
the electrical violations had existed for an extended period while the
plant was operational prior to the inspection. As such, I find that
Respondent violated 30 CRF 56.18002a because a competent person had not
been performing workplace examinations at least once per shift at Delta
Concrete. Citation No. 8693975 is AFFIRMED.
- Gravity
Inspector Frey designated Citation
No. 8693975 as an S&S violation. I have already found that Respondent
failed to have a competent person perform workplace examinations at least
once per shift in violation of 30 CFR § 56.18002a. The second Mathies
element is a contribution to a discrete safety hazard. There were a
number of discrete safety hazards that existed at Delta Concrete which
included inadequate splices, damaged power cords, and a broken handrail
that were not discovered during workplace examinations. Tr. 226-228,
P-10.
The third Mathies element
requires showing a reasonable likelihood that the hazard contributed to
was likely to result in an injury. For the electrical citations, the
inspector testified that many of the electrical hazards were located in
travel ways where miners perform maintenance, repair, inspection, and cleanouts.
The inspector also testified that other discrete safety hazards like the
defective handrail or grizzly ramp were also in locations where miners
frequently work and these hazards were obvious and had existed for a
significant period of time while Respondent was operational. Based on
the testimony of the inspector, I find a reasonable likelihood that the
failure to conduct workplace examinations reasonably contributed to the
likelihood a significant injury would occur.
The fourth Mathies element
requires a reasonable likelihood that a resulting injury will be reasonably
serious. Inspector Frey testified that under the right circumstances
a miner coming into contact with a defective splice or power cord would
be potentially fatal because most of the defective hazards had electrical
capacity up to 480 volts. Tr. 59. The inspector also testified to
five separate fatalgrams, each showing that a 480-volt shock can be fatal.
Tr. 60. Frey stated that the non-electrical hazards posed a significant
risk of injury to miners which included crushing injuries from the grizzly
ramp and fall hazards from the defective handrail. I credit the inspector’s
testimony that many of the hazards cited on August 19, 2013 could lead
to fatal injuries and that six out of nine citations were designated
as potentially fatal. The failure to identify and address these hazards
via workplace examinations significantly contributed to the reasonable likelihood
of a serious injury or fatality occurring.
As the evidence produced at hearing
supports all four elements of the Mathies formula, I find the
Secretary has established that Citation No. 8693975 was an S&S violation.
- Negligence
Inspector Frey testified that the
negligence designation was high because the operator should have been
aware that work place examinations were not being conducted as required
by a competent person. Tr. 228. Frey testified that the Walker stated
during their conversation that equipment operator Jimmy Hanlon did not
have sufficient training and was not competent to perform some workplace
examinations. Tr. 229. Walker testified that his conversation with
the inspector was contrary to inspector Frey’s testimony, but did acknowledge
that Hanlon was not competent to perform workplace examinations for electrical
hazards. Tr. 378. Based on both parties’ testimony, I credit the
inspector’s testimony that the number of electrical hazards demonstrates
that a competent miner whether it be Hanlon or Walker himself, was not
performing adequate workplace examinations. Tr. 233.
Frey also reviewed the workplace
examination reports from Delta Concrete and determined that work was performed
on days when examinations were not recorded. Tr. 230. Frey stated
that when he inspected Respondent, he was not provided with examination
records for every day he could substantiate work taking place. Tr.
230. The inspector stated that there were some records of examinations
on some days, but there were gaps between days when work was performed.
Tr. 215. The mine operator acknowledged that the miners doing workplace
examinations did not do examinations on maintenance days if the wet plant
was not going to produce gravel, even if the miners worked in the cited
areas. Tr. 472-474. He also testified that at the time of the citation,
there were competent miners doing the workplace inspections, but it was
not on a daily basis. Tr. 473. Based on the testimony from both
parties it is easy to conclude there was a fundamental misunderstanding
between Frey and Walker about who was responsible for the workplace examinations.
Walker ultimately admitted he was the responsible competent person after
his son left employment from the mine in 2011 and acknowledged that
workplace exams had only been conducted on a shift by shift basis while
the plant was operational and not when maintenance only was being performed.
However, it is clear from the evidence that at a minimum the electrical
violations had existed since 2011, no less than a year and a half to
two years prior to the 2013 inspection. A competent workplace exam
while the plant was operational during this time should have identified
the electrical issues. Therefore, I find the high negligence designation
to be appropriate and uphold it.
- Penalty
Assessment
The Secretary has proposed a regularly
assessed penalty of $807.00. Respondent’s past history of previous violations
revealed that the mine has a total of seven past violations and no
repeated violations of 56. 18002a. Sec’y Ex. P-1. Walker, the operator
testified that Respondent is a small mom and pop operation with 15 current
employees at the time the citation was issued. Tr. 301. Respondent
has not argued or presented any evidence indicating that any of the
proposed penalties would affect its ability to continue business operations.
I upheld the high negligence designation for this citation because of
the many open and obvious hazards present at Delta Concrete that should
have been identified by sufficient workplace examinations. I also found
that significant injury was reasonably likely because many of the electrical
hazards were located in travel ways where miners perform maintenance,
repair, inspection, and cleanouts.
After considering all six penalty
criteria and noting my penalty analysis earlier in this decision, I uphold
the Secretary’s proposed penalty and assess Respondent a civil monetary
penalty of $807.00 for Citation No. 8693975.
D. Citation
No. 8693977
Inspector Frey issued Citation No.
8693977 on August 23, 2013 for an alleged violation of 30 CRF 56.9300a.
Tr. 241. The inspector alleged within the citation that:
The scale does not have rub rails
or any other mid axle height barrier with approximately a 4 foot drop
off on either side. Trucks drive across the scales as needed depending
upon business. Driving off the scale could cause a truck to turn on
its side leading to cuts, bruises, strains, sprains, or broken bones
for the driver.
Standard 56.9300a was cited 1
time in two years at mine 5001783 (1 to the operator, 0 to a contractor).
Sec’y Ex. 11.
Inspector Frey determined that the violation
was unlikely to cause an injury, the resulting injury would be lost
workdays or restricted duty, the violation was not S&S, affected one
person, and was the result of Respondent’s low negligence. Sec’y Ex.
11. The Secretary has proposed a penalty of $100.00.
- Findings
Inspector Frey issued Citation No.
8693977, because he determined that the operator’s scale for weighing
vehicles was in violation of 30 CFR § 56.9300a which mandates that:
Berms or
guardrails shall be provided and maintained on the banks of roadways
where a drop-off exists of sufficient grade or depth to cause a vehicle
to overturn or endanger persons in equipment.
Frey testified he observed an operator’s
scale for weighing vehicles at the Delta Junction mine that did not
have rub rails, berms, or guardrails and there was a four foot drop
off on either side of the scale. Tr. 243-245. The Commission requires
a three-part test for finding violations of 30 C.F.R. § 56.9300: (1)
whether the scales are part of a roadway; (2) whether each scale has
a drop-off of sufficient grade or depth to cause a vehicle to overturn
or endanger persons; and (3) whether the scales are equipped with berms
or guardrails that are at least mid-axle height of the largest self-propelled
mobile equipment that travels the roadway. Lakeview Rock Prods., Inc.,
33 FMSHRC 2985 (Dec. 2011).
Since issuance of Lakeview the
case that has most fully considered the question of whether an elevated
scale is part of a roadway has been Knife River Corp., 34 FMSHRC
1109 (May 10, 2012) . In Knife River, Judge Thomas McCarthy
applied the Commission's three-part test and provided a thorough analysis
in determining that an elevated truck scale with 10-inch rub rails was
not part of the roadway. The judge found unpersuasive the argument
that the scale is part of a continuous road and therefore, by definition,
part of the roadway. 34 FMSHRC at 1121. He noted that because the
Commission required in Lakeview an initial determination of whether
the scale was part of the roadway, the judge must examine the “design,
location, and use of the truck scale”, in making his determination.
Id. The judge agreed with the Secretary's position that the plain
language of Section 56.9300 would apply to an area where vehicles must
travel, but found that the Secretary in his case failed to establish
that the scale constituted such an area where vehicles must travel.
Id. at 1122. He noted that the scale at Knife River was not
located on the main haulage road where all the vehicles entering or
exiting the mine were required to travel, but rather was removed on
a single-lane access road. Id. The only trucks that drove on
the scale were those being weighed. Id. The judge specifically
found that:
Drivers do not use the scale
as one typically uses a road, bridge, bench, or ramp (i.e., as a means
of traveling from one point to another)… Rather, the scale is used
as a piece of equipment for the sole purpose of weighing vehicles, which
slowly move across the scale with intermittent stops before proceeding
back on course. The fact that trucks enter one end of the scale and
exit on another is completely secondary to the scale's function and use.
Id.
I find that advancing a functionalist
approach, rather than a formal approach that examines the scale superficially,
Judge McCarthy allowed the first element of the Commission's test to
have meaning. Citing Lakeview Rock Products, Inc., 35 FMSHRC 473,
487, 2013 WL 1385621, at *13-14.
In this case Respondent argued
that the operator’s scale was not a roadway that vehicles used as an
entrance or exit to the mine site. Tr. 437. Respondent’s Google image
of the Delta Junction mine shows the location of the main roadway used
by miners and contractors in red. Tr. 317-319, Resp. Ex. A, Photo
7. Walker, the operator, testified that the main roadway in red ran
from left to right, and that the lines depicted traffic flow from the
two exit and entrance points. Id. Also, Walker testified the
location of the scale access point and exit were next to the office
and indicated that a miner would not use this access as an entrance
to or exit from the mine site. Tr. 318, 437. Walker also testified
that the specific purpose of the scale was for weighing vehicles and
was not a roadway that miners would regularly use. Tr. 437. Frey
testified that he considered the scale to be a part of the roadway
because vehicles and trucks would have to drive across the scale twice
in order to be properly weighed. Tr. 243-244. First, a truck driver
with an empty trailer would have to drive over the scale and then weigh
the trailer end. Tr. 243. Second, the truck driver would then drive
over it again, after being loaded, to get a heavy weight to determine
the saleable amount of product. Tr. 243. Because of the vehicle traffic
that the scale road took on, the inspector believed that it was part
of a roadway. Tr. 243-244.
After considering both parties’
arguments, I find that the design, location, and use of the scale at
the Delta Junction mine establishes that it is not part of the mine’s
roadway. I credit Walker’s testimony that the scale road was next to
the office and that it was not used as an entrance or exit roadway
to or from the mine. Like Knife River, the scale was not located
on the main travel way road that ran left to right, but rather the
scale area was removed onto a single-lane access by the main office.
Resp. Ex. A, Photo 7. I credit Walker’s testimony that the sole
purpose of the scale area was to weigh vehicles and not as a roadway
miners used as an entrance and exit. The design and placement of the
scale at the mine, based on the Google image of the Delta Junction
mine site, clearly demonstrates that a miner wishing to weigh a vehicle
would have to pull off the main roadway onto the scale road to be
weighed. Resp. Ex. A, Photo 7. Therefore, I find that the Secretary
has failed to prove a violation of 30 CRF 56.9300a because the scale
access area was not part of a roadway. Accordingly, Citation No. 8693977
is VACATED.
VI. PENALTY ASSESSMENT SUMMARY
The following chart summarizes my findings and
the assessed penalties in this docket:
Citations
Originally
Proposed Assessment
Judgment Amount
Modification
Citation No.
Proposed Amount
Judgment
Amount
Modification
8693966
$807.00
$400.00
Negligence level reduced from high to moderate
8693967
$100.00
$100.00
8693968
$807.00
$807.00
8693970
$807.00
$400.00
Negligence level reduced from high to moderate
8693978
$807.00
$807.00
8693969
$243.00
$243.00
8693974
$243.00
$243.00
8693975
$807.00
$807.00
8693977
$100.00
$0.00
Vacated
Total
$4721.00
$3807.00
VII. ORDER
Based
upon the findings above, Citation Nos. 8693966 and 8693970 are AFFIRMED
with modified negligence levels. Citation Nos. 8693967, 8693968, 8693978,
8693969, 8693974, and 8693975 are AFFIRMED as written. Citation
No. 8693977 is VACATED. Based on the criteria in section 110(I)
of the Mine Act, 30 U.S.C. § 820(I), I assess eight penalties contested
at hearing above for a total judgment penalty of $3807.00. Delta Concrete
Inc. is hereby ORDERED to pay the Secretary of Labor the total
sum of $3,807.00 within 30 days of this order.[1]
/s/
David Simonton
David
P. Simonton
Administrative
Law Judge
Distribution: (First Class U.S. Mail)
Sean J. Allen, Office of the Solicitor, U.S.
Department of Labor, 1244 Speer Blvd., Suite 216, Denver, CO 80202 for
Petitioner
Robert Groseclose, Cook, Schuhmann & Groseclose,
Inc., 714 Fourth Avenue, Suite 200, Fairbanks, AK 99701 for Respondent
[1]
Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S.
DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO
63179-0390
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