Secretary of Labor v. CR Meyer & Sons Company, Inc.

Plain-English summary

CR Meyer sent a foreman and another employee to replace a displaced guard over a rotating agitator shaft at Molycorp's Mountain Pass Mine and Mill. The foreman flipped the guard into place before asking Molycorp to shut down and lock out the operating agitator. Judge Richard W. Manning held that repositioning the guard was repair or maintenance covered by the standard and that leaving the equipment energized and unblocked created an S&S entanglement and finger-severing hazard. He reduced negligence from high to moderate and rejected unwarrantable failure because the act lasted only seconds, exposed one employee, was inconsistent with Meyer's safety program, and reflected the foreman's mistaken belief that he was clear of the hazard. The Judge modified the order to a section 104(a) citation and reduced the specially assessed $8,000 penalty to $800.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.14105
• Outcome: The S&S violation was affirmed, negligence was reduced to moderate, unwarrantable failure was vacated, and an $800 penalty was assessed.
• Key point: Repositioning a machine guard is repair or maintenance requiring power-off and blocking, but a momentary, isolated lapse within an otherwise strong safety program may not be aggravated conduct.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

Office of
Administrative Law Judges

721 19th
Street, Suite 443

Denver, CO 80202-2536

303-844-3577 FAX
303-844-5268

October 29, 2015

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

CR MEYER
& SONS COMPANY, INC.,

Respondent

CIVIL
PENALTY PROCEEDING

Docket No.
WEST 2014-834-M

A.C. No.
04-02542-354386 1ZU

Mt. Pass
Mine & Mill

DECISION

Appearances:               Abigail Daquiz, Esq.,
Office of the Solicitor, U.S. Department of Labor, Seattle, Washington, for
Petitioner;

Eric E. Hobbs,
Esq., Michael, Best & Friedrich LLP, Milwaukee, Wisconsin, for Respondent.

Before:                                    Judge
Manning

This
case is before me upon a petition for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”),
against CR Meyer & Sons Company, Inc., (“Meyer”) 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”). The parties presented testimony and documentary evidence at
a hearing and filed post-hearing briefs. One section 104(d)(1) citation was
adjudicated at the hearing. Meyer is an independent contractor that was performing
work at the Mountain Pass Mine & Mill operated by Molycorp Minerals
(“Molycorp”).

I. DISCUSSION WITH FINDINGS OF FACT

AND CONCLUSIONS OF LAW

On September 10, 2013, MSHA Inspector Miles D. Frandsen[1]
issued Citation No. 8700228 under section 104(d)(1) of the Mine Act, alleging a
violation of section 56.14105 of the Secretary’s safety standards. (Ex. G-8). The
citation alleges that two miners who were charged with reinstalling an out of
place guard, which was designed to protect persons from moving parts on an
agitator, failed to lock out and tag out the equipment before reinstalling the
guard. The agitator was in operation when they reinstalled the guard. The
citation further states that the

violation was
the result of Meyer’s aggravated conduct because the foreman was aware that the
agitator was not locked out or tagged out in violation of Meyer’s written
policy.

Inspector Frandsen determined that an injury was reasonably likely to
occur, that the violation was of a significant and substantial (“S&S”)
nature, and that any injury could reasonably be expected to be permanently
disabling. He determined that Meyer’s negligence was high and that one person
would be affected. Section 56.14105 mandates, in part, that “[r]epairs or
maintenance of machinery or equipment shall be performed only after the power
is off, and the machinery or equipment is blocked against hazardous motion.” 30
C.F.R. § 56.14105. The Secretary proposed a penalty of $8,000.00 for this
citation under the Secretary’s special assessment procedure. 30 C.F.R. § 100.5.

My findings of fact in this decision are based on the record as a whole
and my observation of the witnesses. Although I have not included a summary of
all the evidence presented at the hearing in this decision, I fully considered
all the evidence.

Discussion
and Analysis

1. Evidence

On September 10, 2013, Inspector Frandsen traveled
to Molycorp’s Mountain Pass Mine & Mill to conduct an inspection. Frandsen entered
a building, generally known as the separations building, that contained a tank
farm. (Tr. 21, 117). The tanks, which were large, vertical, and made of fiberglass,
had motors on top that turned a shaft that mixed the contents of the tanks
using paddles attached to the shaft. The shaft was about six to eight inches in
diameter. (Tr. 52). The top of tank at issue in this case was about eight to
ten feet off the floor and was approximately eight feet in diameter.[2]
(Tr. 23, 121). Miners accessed the top of the tanks via a stairway onto
scaffolding. (Tr. 120-121, 24). The mixing device in the tanks is often called
an agitator. The inspector went up on the scaffolding for the first tank and
noticed that a guard had been “flipped to the left” at the top of the tank. (Tr.
22). He issued a citation to Molycorp for this condition because the turning
shaft was exposed. (Tr. 16). The guard was about 18 inches wide and 3 to 4
inches high. (Tr. 33, 55, 131). The guard was designed to be attached by two
bolts to the frame holding the motor. One bolt had been removed and the guard
had been flipped up and over to the left with the other bolt still attached. The
guard came to rest on top of the tank in a horizontal position to the left of
the opening. (Ex. G-4). The spinning shaft was behind the opening. Id.;
(Tr. 52). The inspector believed that the condition created an obvious entanglement
hazard. (Tr. 24-25). He testified that miners go up onto the scaffolding from time
to time to take samples from the tank. (Tr. 23).

Following the inspector’s issuance
of the citation, Molycorp called Meyer, an independent contractor at the mine, and
instructed it to address the problem. Meyer is a large nationwide contractor
that performs maintenance and other work for the mining industry, the pulp and
paper industry, and other industries. (Tr. 19, 79). Inspector Frandsen
testified that he got to know Meyer at the Mountain Pass Mine & Mill and
developed respect for its safety department and its employees. (Tr. 19).

Frandsen continued his inspection
of the separations building but, before he left the area, he wanted to see if
the condition that prompted him to issue the citation to Molycorp had been
abated. Inspector Frandsen issued other citations to Molycorp for the same
violation on other tanks in the separations building. (Tr. 41-42). When he
arrived back at the subject tank, he saw two people standing on top of the
scaffolding leaning out over the tank. (Tr. 24-27). He asked the employees if
the agitator was locked out and they replied “no.” Id. The inspector
told the two men to come down. The two men, both employees of Meyer, were foreman
Robert Berube and miner Robbie Heikinnen. (Tr. 27). Berube told the inspector
that he had flipped the guard back into position and that they were now going
to ask Molycorp to shut down the agitator and lock it out before they secured
the guard with a bolt. (Tr. 28-30; Exs. G-5, 6, 7). Frandsen told the Meyer employees
that the agitator should have been shut down and locked out before the guard
was flipped back into position. (Tr. 31-32). He said that the Meyer employees should
not have reached out over the tank without first shutting down the equipment. (Tr.
32).

Inspector Frandsen considered this
violation to be obvious. The “first step of any mechanic” is to recognize what
you need to do and then “get [the] machine off” so you “can go out there safely
and put the guard back in place.” Id.  According to Frandsen, Meyer
should have contacted Molycorp personnel for instructions as to the proper
procedure for shutting down the tank. (Tr. 34-35). By reaching over to flip the
guard back into place, an employee created a risk of becoming entangled in the
rotating shaft. (Tr. 32). One of the men could have slipped and accidently
pushed his arm through the opening. There was spilled liquid on top of the
tank, which increased the hazard. The inspector believed that the rotating shaft
was very close to the mouth of the opening so that a person’s arm would not
have to go very far beyond the opening to come into contact with the shaft. (Tr.
32-33). Inspector Frandsen testified that someone would “probably get [his]
fingers cut off if they get down in there[.]” (Tr. 41).  

The inspector determined that the violation was
a result of Meyer’s high negligence and unwarrantable failure to comply with
the safety standard. He reached this conclusion because Berube, a foreman for
Meyer, was present and directing the work. (Tr. 43). According to Frandsen, a
foreman is an agent of the operator and his failure to ensure that the job was
completed in a safe manner demonstrates high negligence. (Tr. 43-44)

Robert Berube was a journeyman pipefitter and a
foreman with Meyer on September 10, 2013. (Tr. 110). He testified that he was
in Meyer’s office at the mine when he was told to go look at guards in the
separations building. (Tr. 118). He immediately proceeded to the separations
building along with Robbie Heikinnen, another Meyer employee. Id. When
Berube entered the building, he met a “plant guy” who took them up on the
scaffolding to show Berube the subject guard. (Tr. 120). Berube testified that
he “looked it over” and “flipped the guard.” (Tr. 120, 125). He could
not see into the opening, but estimated that the shaft for the agitator was
about four feet in front of him. (Tr. 122-23). Heikinnen was not involved and
was simply standing on the scaffolding. Once the guard was in place, Heikinnen
put the bolt through the hole on the right side but did not attach the nut. (Tr.
128).

Berube did not consider his act of flipping the
guard back in place to be hazardous. (Tr. 129). He was not near the unguarded
opening when he flipped the guard. He just put a finger under the far left side
of the guard, flipped his finger up, and let gravity pull the guard down into
place. (Tr. 127). He estimated that he was about two feet to the left of the
opening when he flipped the guard back, and an additional 14 inches existed
between the mouth of the opening and the shaft. (Tr. 129-31). Berube testified
that, even if he slipped, he would not have come into contact with the shaft
because he was standing on the scaffolding about two feet to the left of the
unguarded opening. (Tr. 131-32).

Berube also did not consider his act of flipping
the guard back in place to be “repairs or maintenance of machinery or
equipment[.]” (Tr. 129). Brian Bork, Meyer’s safety manager, testified that Berube’s
actions were more akin to housekeeping than repair or maintenance. (Tr. 98-99,
106).

2. Violation

I find that a violation of the cited safety
standard occurred as alleged. The pertinent requirements under the cited standard
are threefold. First, the standard applies only when repairs or maintenance of
machinery or equipment are being conducted. Second, the operator must ensure
that the machinery or equipment is powered off. Third, the operator must ensure
that the machinery or equipment is blocked against hazardous motion. 30 C.F.R. §
56.14105.

I find that the act of flipping the
subject guard back into place amounted to “repairs or maintenance.” In Walker
Stone Co., 19 FMSHRC 48, 51-52 (Jan.1997) the Commission, relying upon the
dictionary definitions of the terms “repair” and “maintenance,” found that the
operator’s act of breaking up and removing rocks from a clogged crusher
amounted to “repairs or maintenance.” Repair was defined as “‘to restore by
replacing a part or putting together what is torn or broken: fix, mend . . . to
restore to a sound or healthy state: renew, revivify . . . .’” Id.
(quoting Webster’s Third New International Dictionary, Unabridged 1923
(1986)). “Maintenance” was defined as “‘the labor of keeping something (as
buildings or equipment) in a state of repair or efficiency: care, upkeep . . .’
and ‘[p]roper care, repair, and keeping in good order.” Id. (quoting Webster’s
Third New International Dictionary, Unabridged 1362 (1986), and A
Dictionary of Mining, Mineral, and Related Terms 675 (1968)).

Respondent argues that the work
done by Meyer did not amount to either repairs or maintenance but that it was
housekeeping. (Meyer Br. 9-10). I disagree. When Molycorp was cited for the
lack of a guard to protect miners from the hazard of the exposed moving machine
parts of the agitator, it contacted Meyer to remedy the unsafe condition. Meyer,
in an effort to carry out its assigned duty, charged Berube with the task.  When
Berube traveled to the separations building, climbed the stairs, stood on the
scaffolding, and reached over the top of the tank to flip the guard back into
place, he was exposed to the same hazard that caused the inspector to cite Molycorp.
Berube’s actions were meant to bring the agitator back into a safe state of
repair by replacing the guard, an essential part to the safe operation of the
agitator. See Hibbing Taconite Co., 35 FMSHRC 3531, 3534 (Dec. 2013)
(ALJ). Accordingly, I find that Berube’s act of flipping the guard back into
place amounted to “repairs or maintenance.”

The machinery or equipment was not
powered off. The inspector credibly testified that the agitator motor and shaft
were “in operation.” (Tr. 52). Respondent did not offer testimony disputing the
Secretary’s assertion. Accordingly, the work was conducted while the power was
on the machinery or equipment.

The machinery or equipment was not
blocked against hazardous motion. Respondent argues that, contrary to the
inspector’s assertion, the standard does not require the locking and tagging
out of machinery or equipment. (Meyer Br. 7). I agree with Respondent that the
standard does not require locking and tagging out. However, I credit the
inspector’s testimony that, in this instance, the most effective way to block
against hazardous motion, which is required by the standard, is to lock and tag
out the motor. (Tr. 31, 34, 58-59). As Frandsen explained, “there is really no
other way to block the motor against motion other than [to] de-energize” and “the
safest way is to lock and tag out.” (Tr. 31) .
The evidence demonstrates that the agitator was powered on and the shaft was not
blocked against motion. Accordingly, I find that the Secretary has proven a
violation of the cited standard.

Respondent, relying on the
inspector’s testimony, argues that the cited standard applies only if miners
are exposed to a hazard and that, because no hazard was present, there was no
violation of the standard. (Meyer Br. 10-12). I disagree. The Mine Act imposes
no general requirement that a violation of one of the Secretary’s standards be
found to create a hazard in order for a citation to be validly issued. Allied
Products, Inc., 666 F.2d 890, 892-93 (5th Cir. 1982). The Secretary need
only establish that a hazard exists when the cited standard explicitly requires
such a showing. Here, the pertinent language of the cited standard makes no
reference to any requirement that a hazard exist. Rather, it only requires that
operators, when conducting repairs or maintenance to machinery or equipment,
power off the equipment and block it against hazardous motion. At the
very least, the standard requires that the equipment or machinery be powered off.
Accordingly, I reject Meyer’s argument. As discussed below, I also find that miners
were exposed to a hazard in this instance.

3. Significant & Substantial

I find that the violation was S&S.[3]
I have already found that there was a violation of the cited safety standard. I
find that a discrete safety hazard existed. I credit the inspector’s testimony
that the failure to de-energize the agitator motor and block it against motion before
replacing the guard exposed miners to the hazard of entanglement or the
severing of fingers. Moreover, I note that the machinery itself was equipped
with stickers in the area of the opening which warned of “Danger” and the need
to “Keep Hands Clear,” with an illustration showing severed fingers. (Exs. G-5
and G-6; Sec’y Br. 11-12).

Meyer, relying Berube’s testimony,
argues that the closest Berube got to the shaft was three to four feet. (Meyer
Br. 11). I do not credit Berube’s testimony regarding estimated distances. Berube,
when asked on direct examination how far the “agitator machine” was from where
he was standing, initially testified that it was a distance of two feet. (Tr.
122). When asked to confirm the distance of two feet, he responded “roughly,”
and then proceeded to ask his own counsel to clarify the question before
changing his estimate of the distance to four feet. Id. Further, while
Berube testified that the distance from the unguarded opening to the shaft was
14 inches, I find that the inspector’s estimation of the distance as being only
a few inches and very close to the edge of the opening to be far more accurate
when examined in conjunction with Exhibit G-5. (Tr. 32-33, 129-130). Finally,
Meyer argues that the inspector’s failure to take measurements, or even get
onto the scaffolding to examine the opening, discredits his testimony that the
miners were “very close” to the hazard. (Meyer Br. 3). While Inspector Frandsen
did not take actual measurements, he did ascend the scaffold and observe the
missing guard prior to issuing the guarding violation to Molycorp. (Tr. 21). As
a result, he was familiar with the space and I credit his distance estimates as
well as his determination that Meyer’s employees were in close proximity to the
hazard when they were on the scaffolding.

Whether it was reasonably likely
that the hazard contributed to by this violation will result in an injury is a
close issue. The Commission has explained that the “reasonably likely”
requirement does not require the Secretary to prove that an injury was “more probable
than not.” U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996). In
addition, the “Secretary need not prove a reasonable likelihood that the violation
itself will cause injury” but, rather, that the hazard contributed to by
the violation will cause an injury. Musser Engineering, Inc. and PBS
Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010); Cumberland Coal Res.,
33 FMSHRC 2357, 2365 (Oct. 2011) (emphasis added). As discussed above, I find
that Berube was in close proximity to the unguarded opening which created the
entanglement and severing hazards discussed above. I find that the Secretary
established that the hazards contributed to by the violation were reasonably
likely to cause an injury.

I also credit the inspector’s
testimony that there was a reasonable likelihood that any injury will be of a
reasonably serious nature up to and including severed fingers. For these
reasons, I find that the violation was S&S.

4. Negligence and
   Unwarrantable Failure

I find that Meyer was moderately negligent and
that the violation was not a result of the Meyer’s unwarrantable failure to
comply with the mandatory standard. Much of the Secretary’s argument in support
of his high negligence and unwarrantable failure designations is premised on
his fact that Berube was an agent of the mine and was directly responsible for the
violation. While I agree that Berube was agent of Meyer, I find that the actions
of Berube and Heikinnen, were idiosyncratic and based upon a belief that they
were not exposed to a hazard.

The Commission has held that “the
negligence of an operator’s ‘agent’ is imputable to the operator for penalty
assessment and unwarrantable failure purposes.” Nelson Quarries, Inc.,
31 FMSHRC 318, 328 (Mar. 2009). The Mine Act defines an “agent” as “any person
charged with responsibility for the operation of all or part of a coal or other
mine or the supervision of miners in a coal or other mine[.]” 30 U.S.C. §
802(e). In determining whether an employee is an agent of the operator, the
Commission has “‘relied, not upon the job title or the qualifications of the
miner, but upon his function, [and whether it] was crucial to the mine’s
operation and involved a level of responsibility normally delegated to
management personnel.’” Ambrosia Coal & Constr. Co., 18 FMSHRC 1552,
1560 (Sept. 1996) (quoting U.S. Coal, Inc., 17 FMSHRC 1684, 1688 (Oct.
1995)) (brackets in original); See also Martin Marietta Aggregates, 22
FMSHRC 633 (May 2000).

I find that Berube was an agent of
Meyer and that his negligence may be properly imputed to Meyer. Berube
testified that he was a foreman for Meyer and was responsible for ensuring that
jobs were completed properly and on time. (Tr. 112). As a foreman he dealt with
scheduling and worked with both Meyer’s safety department, as well as the
safety department of Molycorp. (Tr. 112-113). Further, Berube agreed that he
was responsible in part for safety on the job. (Tr. 113, 133). I find that Berube’s
function was crucial to Meyer’s operation at Molycorp’s Mountain Pass Mine
& Mill, involved a level of responsibility consistent with that of a person
of management, and that he was an agent of Meyer.

The Commission has recognized that “[e]ach
mandatory standard . . . carries with it an accompanying duty of care to avoid
violations of the standard, and an operator’s failure to meet the appropriate
duty can lead to a finding of negligence if a violation of that standard
occurs.” A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In
determining whether an operator has met its duty of care, the Commission
considers “what actions would have been taken under the same circumstances by a
reasonably prudent person familiar with the mining industry, the relevant
facts, and the protective purpose of the regulation.” Jim Walter Res. Inc.,
36 FMSHRC

1972, 1975 (Aug. 2014) (footnote omitted).

I find that Meyer was moderately
negligent. I find that, while Berube’s act of flipping the guard back in place was
a violation, it was idiosyncratic in nature. Neither Berube nor Bork viewed the
work being done as a hazard. While I decline to credit Berube’s testimony that
the shaft was 14 inches away from the unguarded opening, I do credit his honest
belief that he did not expose himself to a hazard when he flipped the guard
back into position from where he was standing. Meyer’s training materials,
specifically its Employee Construction Risk Management Booklet, addresses
similar situations and dictates that Meyer employees should lock and tag out
the machinery or equipment before beginning work. (Ex. R-1 p. 23). I note that
Inspector Frandsen testified that, during his time at the mine site, he
developed a good respect for Meyer, and felt that Meyer was a very good
contractor with a good safety department. (Tr. 19). Further, Berube testified
that Meyer’s safety training was superb compared to training he had received at
other companies and that Meyer’s safety culture across its operations nationwide
was good and involved a commitment to safety on behalf of senior management. (Tr.
115). Because Berube’s actions were based upon the mistaken belief that a
violation did not exist and given Meyer’s training materials and its safety
culture, I find that moderate negligence is appropriate. Accordingly, I MODIFY
the citation to moderate negligence.

The unwarrantable failure
terminology is taken from section 104(d) of the Act, 30 U.S.C. § 814(d), and
refers to more serious conduct by an operator in connection with a violation. In
Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined
that unwarrantable failure is aggravated conduct constituting more than
ordinary negligence. Id. at 2001. Unwarrantable failure is characterized
by conduct described as “reckless disregard,” “intentional misconduct,”
“indifference,” or a “serious lack of reasonable care.” Id. at 2002-04; Rochester
& Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck
Creek Coal, Inc., 52 F.3d 133, 136 (7th Cir. 1995) (approving
Commission’s unwarrantable failure test). The Commission has explained that
whether a citation is an “unwarrantable failure” is a question that should be
evaluated based on the facts and circumstances in each case, and in light of each
of the following factors: (1) the length of time that the violation has
existed; (2) the extent of the violative condition; (3) whether the operator
has been placed on notice that greater efforts were necessary for compliance;
(4) the operator’s efforts in abating the violative condition; (5) whether the
violation was obvious; ( 6) whether the condition posed a high degree of
danger; and (7) the operator’s knowledge of the existence of the violation. See
Consolidation Coal Co., 22 FMSHRC 340 (Mar. 2000); IO Coal Co., 31
FMSHRC 1346 (Dec. 2009). All of the relevant facts and circumstances of each
case must be examined to determine if an actor’s conduct is aggravated, or
whether mitigating circumstances exist. Consol, 22 FMSHRC at 353.

It is important to put this
violation into context. The guards on about 93 of the tanks in the separations
building had been left in an open position like the guard on the subject tank. (Tr.
42). Berube was sent to the building to investigate the situation and to come
up with a solution. After investigating the situation at the tank closest to
the door, Berube determined that the guards on the tanks needed to be put back
into place and secured. Inspector Frandsen testified that Berube told him that
he was going to get Molycorp to shut down the agitators as his next step in the
process. (Tr. 31, 64-65). Berube’s mistake was that he flipped the guard back
into position on the first tank before he asked that the tanks be shut down. There
was no reason for him to take this action. I find that this action did not rise
to the level of aggravated conduct.

In IO Coal Co., 31 FMSHRC at
1352, the Commission emphasized that the length of time that the violative
condition existed is a “necessary element” of the unwarrantable failure
analysis. The Commission has found that a duration of a “matter of seconds” may
weigh against an unwarrantable failure finding. Dawes Rigging & Crane
Rental, 36 FMSHRC 3075, 3080 (Dec. 2014). Here, the violative condition
existed for at most a matter of seconds between the time when Berube first touched
the guard and when the guard fell into position after he flipped it up and
over.

In IO Coal Co., the
Commission explained that the “extent of the violative condition is an
important element in the unwarrantable failure analysis.” 31 FMSHRC at 1351. The
Commission has explained that the purpose of this element is to “account for
the magnitude or scope of the violation[,]” and the judge may analyze it by
looking at, among other things, the “extent of the affected area as it existed
at the time the citation was issued[,]” the number of persons affected, and the
time and resources required to correct the condition. Dawes Rigging &
Crane Rental, 36 FMSHRC 3075, 3079-3080 (Dec. 2014) (citing E. Associated
Coal Corp., 32 FMSHRC 1189, 1195 (Oct. 2010) and Watkins Eng'rs &
Constructors, 24 FMSHRC 669, 681 (July 2002)0; Consolidation Coal Co.,
35 FMSHRC 2326, 2331 (Aug. 2013). In Dawes Rigging the Commission found
that, because only one miner endangered himself by walking under a suspended
boom, the violation was not extensive. Id. Here, only Berube was exposed
to the hazard when he flipped the guard into position. While Heikinnen engaged
in repairs or maintenance when he placed the bolt through the hole on the right
hand side of the guard after it was flipped into place, the inspector agreed
that he was not exposed to a hazard because the guard was in place. (Tr.
61-62). The violative condition was limited to conduct at this particular tank
and guard. I find that the violation was not extensive.

The Commission has explained that
repeated similar violations, even if those prior violations were not a result
of an unwarrantable failure, and past discussions with MSHA about a problem at
the mine, may serve to put an operator on notice that increased efforts to
comply are necessary. IO Coal Co., 31 FMSHRC at 1353-1354. Here, the
Secretary presented no evidence regarding past discussions with MSHA. The body
of the citation states that Meyer was not cited for a violation of this
standard in the two years prior to the issuance of this citation. (Ex. G-1).

In evaluating the operator’s
efforts in abating the violative condition the judge should examine those
abatement efforts made prior to the issuance of the citation or order. Consolidation
Coal Co., 35 FMSHRC 2326, 2342 (Aug. 2013) (citing IO Coal Co., 31
FMSHRC at 1356 and Warwick Mining Co. 18 FMSHRC 1568, 1574 (Sept.
1996)). Here, there was only a matter of seconds between when the violative
condition arose and when it ended. As a result, there was no time to abate this
condition. I note that Meyer had taken steps to prevent such conduct from
occurring through the implementation of its Employee Construction Risk
Management Booklet, which specifically required Meyer employees to lock and tag
out machinery or equipment before beginning maintenance work. [4]
(Ex. R-1 p. 23).

The obviousness of the violative
condition is an important factor in the unwarrantable failure analysis. IO
Coal Co., 31 FMSHRC at 1356. In Eastern Associated Coal Corp., 32
FMSHRC 1189, 1200-1201 (Oct. 2010), the Commission cited evidence that the
violative conditions were not obscured from view in upholding a judge’s finding
that a roof control violation was obvious. Meyer argues that, because Berube credibly
testified that he did not believe that he was exposed to a hazard or that a
violation existed, the violation was not obvious. (Meyer Br. 15-17). I disagree.
I have already determined that a hazard existed and that the presence of a
hazard was not required for the finding of a violation. I find that the condition
cited by the inspector was obvious. The agitator was in operation and Respondent’s
employee began repairs or maintenance without powering off the equipment and
blocking it against hazardous motion.

The Commission has determined that
a high degree of danger posed by a violation is an aggravating factor that
supports an unwarrantable failure finding. IO Coal Co., 31 FMSHRC at 1355-1356.
As stated above, I find that this violation was S&S. Berube’s proximity to
the unguarded opening of the rotating shaft exposed him to a hazard which could
have reasonably been expected to result in an entanglement type injury or severed
fingers. The degree of the danger was only moderately high as opposed to
extremely high.

In IO Coal, the Commission
reiterated the well settled law that, in addition to actual knowledge, an
operator’s knowledge of the existence of a violation may be established where
the operator “reasonably should have known of the violative condition.” 31
FMSHRC at 1356- 1357. Meyer should have known of the violation. Although Berube
did not believe that a violation existed, Meyer’s own safety material suggests
that Berube and Heikinnen should have locked and tagged out the machinery or
equipment before beginning work on the guard. (Ex. R-1 p. 23). Moreover, just
as the cited standard did not require the presence of a hazard before powering
off the agitator and blocking it against hazardous motion, the Meyer’s safety
policy also does not explicitly require the presence of a hazard before locking
and tagging out any equipment or machinery before conducting maintenance. Id.

After careful consideration of each
of the above factors, I find that Meyer did not unwarrantably fail to comply
with the mandatory standard. While the violative condition was obvious,
potentially involved a high degree of danger, and was known to the operator
through its agent, it was not extensive, did not exist for significant period
of time, the operator did not have notice that greater efforts were necessary
for compliance, and it had taken steps towards preventing the cited conduct. In
reaching this conclusion I have taken into account the Secretary’s argument
that “the important factor is the role that CR Meyer’s foreman played in this blatant
disregard for a basic safety measure.” (Sec’y Br. 14). However, given the above
analysis and my finding that Berube’s action was idiosyncratic and without any
real purpose, I find that Meyer’s conduct was not aggravated or a result of its
unwarrantable failure to comply with the mandatory standard. Accordingly, I VACATE
the unwarrantable failure finding and modify the citation to a 104(a) citation.

II. APPROPRIATE CIVIL PENALTY

Section 110(i) of the Mine Act sets
forth the criteria to be considered in determining an appropriate civil
penalty. Meyer had a history of eight violations during the 15 months preceding
the issuance of the subject citation, including one imminent danger order.[5]
None of these enforcement actions were taken at the Mountain Pass Mine &
Mill. Respondent is a large nationwide contractor that worked over 200,000
hours. (Exhibit A to Petition for Assessment of Civil Penalty). The violation
was abated in good faith. The penalty assessed in this decision will not have
an adverse effect upon its ability to continue in business. (Jt. Stip. ¶ 9). The
violation was serious and Meyer’s negligence was moderate.

The Secretary proposed the penalty
under his special assessment regulation. I have modified the citation to a
104(a) citation with moderate negligence. I find that the Secretary did not
establish that this violation was “particularly serious or egregious” so as to
justify the proposed special assessment of $8,000.00. Coal Employment
Project v. Dole, 889 F2d. 1127, 1129-30 (D.C. Cir. 1989). More importantly,
I am not bound by the Secretary’s penalty proposal. The Special Assessment
Narrative Form attached to the Petition for Assessment of Civil Penalty shows
that, had this citation been regularly assessed, the penalty would have been
$2,000.00. (Special Assessment Narrative Form attached to Petition for
Assessment of Civil Penalty). Moreover, if Inspector Frandsen had determined
that the violation was the result of Meyer’s moderate negligence, the
Secretary’s proposed penalty would have been about $555.00, before any
reduction for good faith abatement. 30 C.F.R. § 100.3. In light of my findings
set forth above, I find that a penalty of $800.00 is appropriate for this
violation.

III. ORDER

For the reasons set forth above,
Citation No. 8700228 is MODIFIED to a citation issued under section
104(a) of the Mine Act and the degree of negligence is reduced to moderate. In
all other respects the citation is AFFIRMED. CR Meyer & Sons
Company, Inc., is ORDERED TO PAY the Secretary of Labor the sum of $800.00
within 30 days of the date of this decision.[6]

/s/ Richard W.
Manning

Richard
W. Manning

Administrative
Law Judge

Distribution:

Abigail Daquiz, Esq., Office of the Solicitor, U.S. Department of Labor, 300 Fifth
Avenue, Suite 1120, Seattle, WA 98104-2397 (Certified Mail)

Eric E.
Hobbs, Esq., Michael Best & Friedrich LLP, 100 E. Wisconsin Avenue, Suite
3300, Milwaukee, WI 53202-4108 (Certified Mail)

[1]
Inspector Frandsen has been an inspector with
MSHA for about eleven years. (Tr. 14). He is trained as an electrical
inspector. Prior to his employment with MSHA he worked as a mechanic at various
mines; he acquired electrical papers; and he was a maintenance supervisor and
production supervisor. (Tr. 16). 

[2] There is some question as to whether the top of the
tank was eight feet in diameter or eight feet in circumference. In response to
the question, “How big aground was the agitator or the tank[,]” Berube
responded “probably eight feet[.]” (Tr. 121). Given that both parties agree
that the cited guard was approximately 18 inches wide, and relying on that
measurement for scale when examining Exhibit R-6, I find that the tank was approximately
8 feet in diameter. If the circumference were eight feet, the diameter would be
less than three feet. (Diameter = Circumference ÷ π)

[3] An S&S violation is a violation “of such nature
as could significantly and substantially contribute to the cause and effect of
a . . . mine safety or health hazard.” 30 U.S.C. § 814(d). In order to
establish the S&S nature of a violation, the Secretary 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 will be of
a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan.
1984); accord Buck Creek Coal Co., Inc., 52 F.3d 133, 135 (7th Cir.
1995); Austin Power Co., Inc., 861 F. 2d 99, 103 (5th Cir. 1988)
(approving Mathies criteria). An experienced MSHA inspector’s opinion
that a violation is S&S is entitled to substantial weight. Harlan
Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998).

[4] Meyer’s Employee Construction Risk Management Booklet
states that “[e]mployees shall place a lock and tag at the point of energy
isolation on any equipment or machine before performing any maintenance,
adjustment, or construction to indicate that there shall not be any operation
until the individual has removed the lock and tag.” (Ex. R-1 p. 23).

[5] The parties did not submit a history of violations. The
court obtained the history data from MSHA’s Mine Data Retrieval System, available
at http://www.msha.gov/drs/drshome.htm.

[6] Payment should be sent to the Mine Safety and Health
Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St.
Louis, MO 63179-0390