Secretary of Labor v. The Silver Queen Mine, LLC

Read the official release (fmshrc.gov)

Plain-English summary

MSHA issued sixteen citations during inspections of the small Silver Queen underground silver mine. Judge Richard W. Manning rejected the operator's argument that the Mine Act capped the number of inspections at the statutory minimum, explaining that section 103(a) requires at least four annual inspections and does not bar additional inspections. He then assessed the alleged blasting, electrical, ventilation, equipment, workplace-examination, and other safety violations individually, affirming or modifying the citations and rejecting late efforts to increase negligence designations that were not tried at the hearing. The judge imposed penalties totaling $4,960.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 41.12, 57.11053(c), 57.12018, 57.12028, 57.12032, 57.13011, 57.14100(a), 57.14132(b)(1), 57.15004, 57.18002(a), 57.18006, 57.20011, 57.4102, 57.6202(a)(5), 57.6306(g), and 57.8528
• Outcome: Sixteen citations were affirmed or modified, with total civil penalties of $4,960.
• Key point: The Mine Act's required inspection frequency is a minimum, not a ceiling on MSHA's inspection authority.

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

April 6, 2016

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

THE SILVER
QUEEN MINE, LLC,

Respondent

CIVIL
PENALTY PROCEEDINGS

Docket No.
WEST 2015-448-M

A.C. No.
02-03312-373291

Docket No.
WEST 2015-574-M

A.C. No.
02-03312-377914

Silver
Queen Mine

DECISION

Appearances:               John Lauer, Esq., Office
of the Solicitor, U.S. Department of Labor, Denver, Colorado, and D. Scott
Horn, Mine Safety and Health Administration, U.S. Department of Labor, Vacaville,
California, for the Secretary;

Trenton Davis,
Clovis, California for The Silver Queen Mine, LLC.

Before:                                    Judge
Manning

These cases are before me upon petitions for assessment of civil penalty
filed by the Secretary of Labor, acting through the Mine Safety and Health
Administration (“MSHA”), against The Silver Queen Mine, LLC (“Silver Queen”) 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 held in Henderson, Nevada. Silver Queen was represented
by Trenton Davis, its agent. Davis cross-examined MSHA Inspector Miles D.
Frandsen and introduced three exhibits, but did not offer any witnesses. The
Secretary filed post-hearing briefs but Davis elected not to do so. I
considered the arguments presented in the briefs but I have not summarized them
in this decision except as necessary.

The Silver Queen Mine is a small underground silver mine in Mojave
County, Arizona, that employed about four miners in late 2014 and early 2015. Sixteen
section 104(a) citations were adjudicated at the hearing.

I. DISCUSSION WITH FINDINGS OF FACT

AND CONCLUSIONS OF LAW

A.
WEST 2015-448-M

At the start of the hearing, Silver Queen moved to dismiss WEST
2015-448-M and vacate the ten citations contained in the docket. (Tr. 12). Silver
Queen argued that the Secretary violated a provision in MSHA’s “Metal and
Nonmetal General Inspection Procedures Handbook.” (Ex. R-1). Silver Queen
maintained that under a section entitled “Regular

Inspection
Procedures,” the Handbook limits the number of inspections that MSHA may make
at a mine in any given year. Id. at 2. Silver Queen argued that it had
already been subjected to the mandatory number of inspections for the year
before Inspector Frandsen commenced the inspection that is the subject of this
case. (Tr. 20).  

I denied Silver Queen’s motion at the hearing. (Tr. 141). I relied on the
language of section 103(a) of the Mine Act which states that “[i]n carrying out
the requirements clauses (3) and (4) of this subsection, the Secretary shall
make inspections of each underground coal or other mine in its entirety at
least four times a year[.]” 30 U.S.C. § 813(a) (emphasis added).[1]
It is clear that the Mine Act and the Inspection Handbook mandate a minimum
number of inspections and do not restrict the Secretary from completing more
inspections than this statutory minimum. In addition, the Secretary argued that
the record shows that the mine had not been subjected to more inspections than
the statutory minimum. I relied of the language of the Mine Act in denying the
motion and I note that there has been no showing that the Secretary abused his
discretion by using his inspection authority to harass the mine.

In December 2014, MSHA Inspector Miles D. Frandsen[2]
inspected the Silver Queen Mine and issued ten citations, as discussed below.

1. Citation
   No. 8871120

Safety Standard: 57.6306(g)

Gravity: Reasonably likely, S&S, fatal accident reasonably likely, 1
person affected

Negligence: High

Proposed Penalty: $2,678

This citation alleges that the mine did not conduct a proper post-blast
inspection following a blast that occurred on December 1, 2014. (Ex. P-A). During
Inspector Frandsen’s inspection the following day, he noticed that two of the
blasting holes had not detonated. The yellow blasting devices were clearly
visible upon examination of the area. Section 57.6306(g) provides that “[w]ork
shall not be resumed in the blast area until a post-blast examination addressing
potential blast-related hazards has been conducted by a person with the ability
and experience to perform the examination.” 30 C.F.R. § 57.6303(g).

Frandsen testified that, while traveling to the mine portal, he had a
discussion with miners coming out from underground who indicated to him that
they had observed undetonated blasting holes from the blast the day before. (Tr.
146-147, 150). The operator told Frandsen that it had conducted a post-blast
examination. (Tr. 147, 151, 155). According to Frandsen, it is the practice in
the mining industry to do the post-blast examination shortly after the blast. (Tr.
159). When Frandsen traveled underground he observed yellow shock tubes hanging
out of the face. (Tr. 147). According to Frandsen, the shock tubes were
extremely obvious and indicated that undetonated explosives had been left in
the face from the day before. (Tr. 147, 160). There were no warning signs or
barricades in the area and miners had been working underground after the
post-blast examination. (Tr. 151, 160-161).

I find that Silver Queen violated the cited standard. Frandsen testified
that mine employees told him that it a post-blast examination had been
conducted following the blast on December 1, 2014. However, the post-blast
examination clearly was not properly performed, as evidenced by the obvious
yellow shock tubes that Frandsen observed in the face, which should have been
addressed immediately following the post-blast examination. Frandsen testified
that miners had been working underground in this small mine since the post-blast
examination. Moreover, the miners whom Frandsen encountered while traveling to
the portal entered the blast area in order to discover that the post-blast
examination had failed to address the obvious hazard of undetonated explosives
that remained in the face. Consequently, I find that a violation has been
proven.

Frandsen determined that, given the presence of explosives and the obviousness
of the shock tubes that were not detected, the mine’s failure to conduct a
proper post-blast examination was reasonably likely to lead to a fatal injury,
and that the violation was significant and substantial (“S&S”). (Tr. 148). Moreover,
he noted that an inadequate examination could result in poisonous post-blast gases
not being detected. (Tr. 147).

I find that the violation was S&S.[3]
I find that a discrete safety hazard existed in that the failure to conduct a
proper post-blast examination exposed miners to the hazard of being in an area
where they were unknowingly in close proximity to undetonated explosives. Moreover,
the inspector noted that an inadequate examination like the one performed here
could lead to miners being exposed to poisonous gases. I agree with Frandsen
that, given the presence of explosives, the failure to conduct a proper
examination was reasonably likely to lead to an injury and that injury was
likely to be fatal. The fact that the shock tubes were so obvious, yet went
unnoticed by the examiner, leads me to believe that serious injuries were
likely at this mine for failure to conduct competent examinations, assuming
continued mining operations. Consequently, I find that the violation was
S&S.

Frandsen testified that, given the obviousness of the yellow shock tubes
and the fact that he previously issued a separate citation under the same
standard to this mine, the mine was highly negligent. (Tr. 148-149).

I find that the violation was a result of Silver Queen’s high negligence.
I agree with the inspector’s assessment that the obviousness of the shock tubes
and the fact he had previously cited the mine for a violation of this same
standard lend themselves to a finding of high negligence. Like any mandated
examination under the Mine Act, post-blast examinations are fundamental in
assuring a safe work environment for miners. See Enlow Fork Mining
Co., 19 FMSHRC 5, 15 (Jan. 1997); Buck Creek Coal Co., 17 FMSHRC 8,
15 (Jan. 1995); Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 198
(Feb. 1991). Silver Queen’s blatant failure to properly conduct the post-blast
examination denied the miners this fundamental assurance. Consequently, I
uphold the Secretary’s high negligence finding.

Based on my findings and the penalty factors discussed below, I find that
a penalty of $1,500.00 is appropriate. I have reduced the penalty solely on the
basis of Silver Queen’s small size.

2. Citation
   No. 8871121

Safety Standard: 57.6202(a)(5)

Gravity: Unlikely, not S&S, fatal accident possible, 1 person
affected

Negligence: Moderate

Proposed Penalty: $162

This citation alleges that the Kawasaki Mule used to transport explosives
did not have any placards or warning signs to identify the presence of
explosive materials. (Ex. P-F). The vehicle was used to transport explosive
materials the day of the inspection and is used almost daily for that purpose. Section
57.6202(a)(5) provides that “[v]ehicles containing explosive materials shall be
. . . [p]osted with warning signs that indicate the contents and are visible
from each approach.” 30 C.F.R. § 57.6202(a)(5).

Frandsen testified that the cited vehicle, which was used by the mine to
transport blasting caps, was not equipped with any warning signs. (Tr. 164-165).
Frandsen took a photograph of the vehicle which shows no warning signs. (Tr.
164; Ex. P-H).

I find that Silver Queen violated the cited standard. The photograph
taken by Frandsen, along with his testimony, confirms that there were no
warning signs to indicate the contents of the vehicle. Consequently, I find
that a violation existed.

Frandsen testified that, although an injury was unlikely to occur as a
result of the cited condition, if one were to occur it was reasonably likely to
be fatal. (Tr. 166). He based his assessment on the fact that only three
persons worked at the mine, and the two individuals who worked underground would
have been the ones to drive the vehicle. (Tr. 166). A BLM road goes through the
mine site and non-mine personnel were seen driving the road the day the
inspector was there. (Tr. 166-167). On cross-examination Frandsen acknowledged
that the box in the bed of the vehicle met the standard for being an approved
container for hauling explosives. (Tr. 168).

I agree with the inspector’s gravity assessment. Given the limited number
of people who would be using the vehicle, it is unlikely that anyone would fail
to remember that the vehicle is used to haul explosives. Moreover, protection
would be provided by the explosives transport box, which Frandsen testified was
to code. Consequently, I affirm the inspector’s gravity determinations.

Frandsen testified that the mine operator was moderately negligent. He
based his determination on a conversation he had with mine personnel. Miners
told him that they previously had a magnetic warning cone on the roll bars of
the vehicle, but it had fallen off. (Tr. 167). I find that Silver Queen was
moderately negligent.

Based on my findings and the penalty factors discussed below, I find that
a penalty of $162.00 is appropriate.

3. Citation
   No. 8871122

Safety Standard: 57.14132(b)(1)

Gravity: Unlikely, not S&S, fatal accident possible, 1 person
affected

Negligence: High

Proposed Penalty: $540

This citation alleges that the Chevy flat-bed truck had an obstructed
view to the rear. The truck was not equipped with any sort of reverse-activated
signal alarm and spotters were not used when the vehicle was moved in reverse. (Ex.
P-J). A 55 gallon barrel of oil and a diesel fuel tank obstructed the rear
view. The truck was regularly used at the mine. Section 57.14132(b)(1) provides
that “[w]hen the operator has an obstructed view to the rear, self-propelled
mobile equipment shall have . . . [a]n automatic reverse-activated signal
alarm; . . .[a] wheel-mounted bell alarm which sounds at least once for each
three feet of reverse movement; [a] discriminating backup alarm that covers the
area of obstructed view; or . . . [a]n observer to signal when it is safe to
back up.” 30 C.F.R. § 57.14132(b)(1).

Frandsen testified that miners told him that, before backing up the
vehicle, they walk around the vehicle. (Tr. 170, 172-173). The miners then get
into the vehicle and back it up without the use of a spotter. (Tr. 170-173). There
was no backup alarm present on this vehicle, nor a wheel bell. (Tr. 170, 172). Frandsen
testified that, although he did not climb into the vehicle and look out the rear
view mirror, there were multiple objects in the back of the truck that restricted
the view to the rear, including a barrel, fuel tank, and rack. (Tr. 173; Ex.
P-L). According to Frandsen, miners told him that the items in the back of the
vehicle are always present. (Tr. 172).

I find that Silver Queen violated the cited standard. The rear view from
the cab of the truck was obstructed. The photograph the inspector took of the
condition clearly shows a number of items which obstructed the view of an individual
backing up the vehicle. The vehicle was not equipped with any kind of backup
alarm or wheel bell. Moreover, the mine was not using a spotter. Consequently,
I find that the Secretary has proven a violation of the cited standard.

Frandsen testified that an injury was unlikely as a result of the cited
condition because the vehicle operator walks around the vehicle before getting
in to back up. (Tr. 171). He explained that if the truck backed over a miner,
any injuries would likely be fatal, however. Id.

I agree with the inspector’s gravity assessment. Although walking around
the vehicle before entering it may alert the vehicle operator to persons or
objects that are in the area at that moment, it does not alert or prevent
persons from entering the area before the operator actually begins backing up the
vehicle. In this instance, I find that an injury was unlikely to be sustained. Nevertheless,
I agree with the inspector that, if a miner were struck and run over or pinned
against something, the injuries would likely be fatal.

Frandsen testified that the operator was highly negligent. He based his
determination on a conversation he had with Ken Graham, the mine manager, in
which Graham provided no mitigating circumstances and told Frandsen that he never
made the miners aware that they needed to have a spotter. (Tr. 65).

I agree that Silver Queen was highly negligent. The fact that Graham, the
mine manager, did not make his employees aware of the need for a spotter is
especially troublesome. As discussed above, an accident stemming from the
failure to provide a spotter could result in a fatal injury. Management’s
failure to alert miners that they the need to comply with the standard is
inexcusable. Consequently, I find that the inspector’s high negligence designation
is appropriate.

Based on my findings and the penalty factors discussed below, I find that
a penalty of $540.00 is appropriate.

4. Citation
   No. 8871123

Safety Standard: 57.4102

Gravity: Unlikely, not S&S, lost workdays/restrict duty possible, 1
person affected

Negligence: High

Proposed Penalty: $162

This citation alleges that there were excessive amounts of oil and fuel
spillage on the Chevy flatbed truck. (Ex. P-M). The bed, frame, back window and
part of the truck body were splashed and covered with oil and spilled diesel
fuel. Section 57.4102 provides that “[f]lammable or combustible liquid spillage
or leakage shall be removed in a timely manner or controlled to prevent a fire
hazard.” 30 C.F.R. § 57.4102.

Frandsen testified that he observed oil and fuel spillage on the flatbed
truck. (Tr. 177). According to Frandsen, oil and fuel from the oil barrel and fuel
tank in the back of the truck covered the truck bed, the frame, and had
splashed on the truck cab and back window. (Tr. 177-178). He explained that the
condition had existed for some time and had not been cleaned up. (Tr. 177, 181-182).
Graham told Frandsen that sometimes the oil hose falls down and leaks. (Tr.
177).

I find that Silver Queen violated the cited standard. Fuel and oil were
observed covering much of the back of the truck. I credit Frandsen’s testimony
that the condition had existed for some time. Graham’s statement that the hose
sometimes falls and leaks confirms the extent of the condition. It would take
time for the spillage from a leaking hose to cover the truck to the extent described
by Frandsen. Nothing had been done to clean up the oil and fuel. Consequently,
I find that a violation existed.

Frandsen testified that, although an injury was unlikely to occur as a
result of the cited condition, if one were to occur it would result in lost
work days or restricted duty. (Tr. 179). Frandsen explained that, although the
welder in the back of the truck presented an ignition source, there was a lot
of dirt that had blown onto the back of the truck and mixed with the oil and
fuel. (Tr. 178-179). Moreover, there was at least one fire extinguisher
present. (Tr. 181). As a result, he thought that an injury was unlikely. (Tr.
179). However, in the event there was an ignition, he testified that
individuals would suffer smoke inhalation and burns while fighting the fire. (Tr.
179).

I agree with the inspector’s gravity assessment. The presence of the fire
extinguisher and the dirt that had mixed with the combustible materials mitigated
the hazard to some extent. I credit the inspector’s conclusion that, despite
the presence of the welder/ignition source, an ignition and injury was
unlikely. However, in the event of an ignition, burns and smoke inhalation were
reasonably likely to be sustained, both of which are injuries that are likely
to result in lost workdays or restricted duty.

Given the obviousness of the condition, and the mine manager’s acknowledgement
that the hose sometimes fell and leaked, Frandsen determined that the mine was
highly negligent. (Tr. 180). He explained that Graham’s acknowledgement
amounted to a concession that the mine knew there was a problem, but had done
nothing to remedy it. (Tr. 180).

I find that Silver Queen was highly negligent. As Frandsen explained, the
condition was obvious and extensive, covering much of the rear of the truck. Graham’s
statement indicated a lack of understanding on the part of management as to the
proper standard of care. Here, Graham’s concession that a problem existed,
combined with the fact that the accumulation was obvious and had existed for
some time, lends itself to a finding of high negligence.

Based on my findings and the penalty factors discussed below, I find that
a penalty of $162.00 is appropriate.

5. Citation
   No. 8871124

Safety Standard: 57.12032

Gravity: Unlikely, not S&S, fatal accident possible, 1 person
affected

Negligence: Moderate

Proposed Penalty: $162

This citation alleges that the cover plate for the variable-frequency
drive (“VFD”) control to the ventilation fan was missing. (Ex. P-R). This
control is at the mine portal and was in a junction box that did not have a
cover plate. Power cables and exposed connections were inside the box, which
subjected miners to the potential of electrocution, shocks, and burns. Section
57.12032 provides that “[i]nspection and cover plates on electrical equipment
and junction boxes shall be kept in place at all times except during testing
and repairs.” 30 C.F.R. § 57.12032.

Frandsen testified that he observed no cover on the electrical box for
the soft start controls. (Tr. 185-186; Ex. P-T). He could see the three 480
volt leads to the right of the soft start. (Tr. 186). According to Frandsen, he
was told by Graham that the cover had been left off because the box needed to
be ventilated. (Tr. 187).

I find that Silver Queen violated the cited standard. The cover plate for
the soft start was not on the box. (Ex. P-T). Graham’s explanation to Frandsen
as to why the plate was not on the box makes it clear that the plate had not been
removed for testing or repairs. Consequently, I find that a violation of the
cited standard existed.

Frandsen testified that, although an injury was unlikely to occur as a
result of the cited condition, if one were to occur it was reasonably likely to
be fatal. (Tr. 186-187). He explained that mine employees told him that, once
the soft start was set, one would not have to work on it very often. (Tr. 186).
However, if any injury were sustained, given that the wires were 480 volts, it
would result in a fatal electrocution. (Tr. 187).

I find that the inspector’s gravity designations are appropriate. I
credit the inspector’s testimony that the cited condition would cause a fatal
injury if a miner were to come in contact with the wires. I agree that an injury
was unlikely to be sustained.

Frandsen testified that Graham told him the cover had been left off the
box because an electrician told him that the box needed to be ventilated. (Tr.
187). However, Frandsen stated that the condition was obvious and the
ventilation issue could have been addressed without leaving the cover off of
the electrical box. (Tr. 187-188). Based on his observations, he designated the
violation as being a result of Silver Queen’s moderate negligence. (Tr. 187). Given
that the violation was a result of the operator’s attempt to comply with the
recommendation of an electrician, I find that the operator was moderately
negligent.

Based on my findings and the penalty factors discussed below, I find that
a penalty of $162.00 is appropriate.

6. Citation
   No. 8871125

Safety Standard: 57.13011

Gravity: Unlikely, not S&S, fatal accident possible, 1 person
affected

Negligence: Low

Proposed Penalty: $100

This citation alleges that the old water heater that was underground was
not equipped with an automatic pressure-relief valve. (Ex. P-V). The unit was
pressurized by air to push water to the drills and hoses at the face. Miners
were exposed to potential fatal injuries from the tank if the air pressure
became too great. Section 57.13011 provides in part that “[a]ir receiver tanks
shall be equipped with one or more automatic pressure-relief valves.” 30 C.F.R.
§ 57.13011.

Frandsen testified that he observed a water tank without an automatic-pressure
relief valve. (Tr. 191-192). The water tank was pressurized with air, which
would push the water to the heading where the mine was drilling and blasting. (Tr.
192). Frandsen explained that, although this was a water tank, it is considered
an air receiver tank under the standard because the water is pressurized with
air and the air is used to push the water. (Tr. 196).

I find that Silver Queen violated the cited standard. I accept the
inspector’s explanation as to why this water tank is considered an “air
receiver” tank under the cited standard. See Lhoist North America of
Virginia, 36 FMSHRC 2413, 2421-2424 (Sept. 2014) (ALJ) (upholding a
violation of 57.13011 that involved an ANFO tank that was pressurized with air
that pushed ANFO through the tank and into hoses). The water tank was not equipped
with an automatic pressure-relief valve. Consequently, I find that a violation
existed.

Frandsen testified that, although an injury was unlikely to occur as a
result of the cited condition, if one were to occur it was reasonably likely to
be fatal. (Tr. 194-195). He explained that the mine told him the water tank was
rated for 150 psi of pressure and had a regulator on it that was set at 50 psi.
(Tr. 194, 197). Further, on cross-examination he testified that the miners told
him that the compressor which pressurized the tank could only go to 120 psi. (Tr.
198). As a result, he opined that an injury was unlikely. (Tr. 194). However,
if the tank were over-pressurized and exploded, he believed that it would
result in fatal injuries. (Tr. 193, 195).

I find that the inspector’s gravity designations are appropriate. Given
that the pressure ratings for both the regulator and outside compressor were
less than that of the tank, it was unlikely that the lack of an automatic
pressure relief valve would result in the tank exploding. Nevertheless, if the
tank did explode, I agree with the inspector that the injuries were likely to
be very serious. Consequently, I affirm the gravity designations.

Frandsen determined that Silver Queen exhibited low negligence. He based
his determination on the fact that an automatic pressure relief valve was found
in the area (Ex. P-Y) and a statement made by Graham that he did not know why
the relief valve they found was not on the tank. (Tr. 193-196).

I find that the violation was the result of Silver Queen’s low
negligence. It is unclear why exactly a relief valve was not attached to the
tank. Graham’s statement to Frandsen indicates that the mine was aware of its
responsibility to equip the tank with an automatic pressure relief valve. Graham
was apparently unaware that the tank was not equipped with one. The tank was
equipped with a regulator set at 50 psi. For these reasons, I find that Silver
Queen only exhibited low negligence.

Based on my findings and the penalty factors discussed below, I find that
a penalty of $100.00 is appropriate.

7. Citation
   No. 8871126

Safety Standard: 57.8528

Gravity: Unlikely, not S&S, fatal accident possible, 1 person
affected

Negligence: Low

Proposed Penalty: $100

This citation alleges that the old East Drift had been removed from
ventilation but Silver Queen only placed a small berm across the entry and hung
a warning sign with brattice material. (Ex. P-AA). The drift was neither
barricaded nor sealed. Miners could easily travel past the berm and be exposed to
air containing insufficient oxygen or poisonous gases. Section 57.8528 provides
that “[u]nventilated areas shall be sealed, or barricaded and posted against
entry.” 30 C.F.R. § 57.8528.

Frandsen testified that he observed an unventilated drift that had been
removed from service and had not been barricaded or sealed. (Tr. 201, 203). A curtain,
which had openings on both sides, had writing on it that said “Keep out. No
vent.” (Tr. 203, 207; Ex. P-CC). A two to three foot berm existed but,
according to Frandsen, did not prevent passage. (Tr. 203, 207). Frandsen
explained that “barricaded” means “obstructed to prevent a passage of persons,
vehicles, or flying materials.” (Tr. 201). Here, neither the berm nor the
curtain functioned as a barricade because they would not prevent passage. (Tr.
203). On cross-examination Frandsen explained that, in his years of experience,
it was not reasonable to expect that miners would not go back in the drift
simply because of the steps taken by the mine operator in this instance. (Tr.
207-208).

I find that Silver Queen violated the cited standard. The abandoned drift
was not being ventilated. Although the writing on the curtain stating “Keep out
. . . No vent” satisfies the standard’s requirement that the unventilated drift
be posted against entry, the mine had not sealed or barricaded the area. Clearly,
the drift was not sealed. (Ex. P-CC). The Secretary’s regulations define
“barricaded” as “obstructed to prevent the passage of persons, vehicles, or
flying materials.”[4]
30 C.F.R. § 57.2. I agree with the inspector that the two to three foot berm
and loose hanging curtain did not prevent the passage of persons into the
unventilated area. I credit his testimony explaining that, in his experience, miners
go places they should not be. The standard and accompanying definition of
“barricaded” direct that the barricade prevent passage of persons. Here,
although the berm and curtain may suggest that miners not enter the area, they
cannot be said to prevent passage of persons. See Newmont USA Limited,
34 FMSHRC 146, 161 (Jan. 2012) (ALJ) (holding that a rope strung from rib to
rib was incapable of preventing the passage of persons, vehicles or flying
materials). A miner could easily step over the berm and walk around the
curtain. Consequently, I find that a violation has been proven.

Frandsen testified that, although an injury was unlikely to occur as a
result of the cited condition, if one were to occur it was reasonably likely to
be fatal. (Tr. 202). He determined that there was a sign in place which
directed against entry and, as a result, it was unlikely that an injury would
be sustained. (Tr. 202). Nevertheless, if a miner were to enter that area he
could suffocate due to poisonous gases. (Tr. 202).

I find that the inspector’s gravity designations are appropriate. Although
the curtain and berm may not have prevented miners from entering the area, they
likely would have dissuaded miners from doing so. Accordingly, it is unlikely
miners would go past the curtain and berm into the unventilated area. However,
if they did go into the unventilated area, they would likely suffocate due to
the lack of oxygen or the presence of poisonous gases. Consequently, I uphold the
inspector’s gravity findings.

Frandsen designated the violation as being the result of Silver Queen’s
low negligence. He based his designation on Graham telling him that he
considered the sign and berms adequate to meet the standard. (Tr. 203). I agree
that the violation was caused by Silver Queen’s low negligence. I credit the
inspector’s testimony that the operator was mistakenly under the impression
that the steps it had taken satisfied the standard. Consequently, I affirm the
low negligence designation.

Based on my findings and the penalty factors discussed below, I find that
a penalty of $100.00 is appropriate.

8. Citation
   No. 8871127

Safety Standard: 57.11053(c)

Gravity: Unlikely, not S&S, fatal accident possible, 1 person
affected

Negligence: Low

Proposed Penalty: $100

This citation alleges that an escape plan was not posted underground, at
the portal or where the check in/check out board is located. (Ex. P-EE). If
miners were to become confused during an emergency, they could travel into dead
ends rather than out to the portal. Section 57.11053(c) provides that every mine
shall develop “[a]n escape plan for each working area in the mine to include
instructions showing how each working area should be evacuated.” 30 C.F.R. § 57.11053(c).
The safety standard goes on to require that each “plan shall be posted at
appropriate shaft stations and elsewhere in working areas where persons
congregate.” Id.

Frandsen testified that the mine did not have escapeway maps or an
escapeway plan anywhere underground. (Tr. 211-212). He explained that, although
there was only one way in and out of this mine, miners congregated in areas
underground, such as near the mine phone, first aid station and work area, and
the escape maps and plans were required to be posted in those areas. (Tr.
214-215).

I find that Silver Queen violated the standard. No escape plan was posted
anywhere underground. The standard requires that the plan be posted in working
areas where miners congregate. The inspector testified that a person could walk
out of the mine in five to ten minutes under normal circumstances. (Tr. 36). Although
this particular mine may have been small and uncomplicated when compared to
other mines, miners could still get confused during an emergency. I credit the
inspector’s testimony on this point. Consequently, I find that a violation has
been proven.

Frandsen testified that, although an injury was unlikely because the mine
was not complicated and there was only one way in and out, if an injury were to
occur it was reasonably likely to be fatal. (Tr. 212-213). He explained that if
miners are caught underground and are unable to locate the escape plan, they
could be exposed to poisonous gases and other hazards in the event of a mine
fire. (Tr. 213). Frandsen has fought several mine fires and explained that it
is very easy to get disoriented and confused in an emergency. (Tr. 213). I
credit this testimony.

I find that the inspector’s gravity designations are appropriate. This is
a small underground mine with only a few miners. The mine’s layout is, as
Frandsen testified, uncomplicated. I agree that it is unlikely that Silver
Queen’s failure to post the escape plan underground would lead to an injury. Still,
if a miner became disoriented and confused during an emergency, such as a mine
fire, the lack of an escape plan underground could certainly contribute to a fatal
injury as described by the inspector. Consequently, I affirm his gravity
determinations.

Frandsen determined that the operator exhibited low negligence. (Tr.
214). Frandsen testified that Graham told him that, because there was only one
way in and out of the mine, he did not think they needed to have a plan
underground. (Tr. 214). Graham explained to Frandsen that the escape plan is posted
on the surface in an area where miners congregate. (Tr. 214).

Given the lack of complexity of this mine, I find that the operator’s
belief that it did not need to maintain a copy underground is understandable. Consequently,
I agree with the inspector that the violation was caused by Silver Queen’s low
negligence.

Based on my findings and the penalty factors discussed below, I find that
a penalty of $100.00 is appropriate.

9. Citation
   No. 8871134

Safety Standard: 57.12018

Gravity: Unlikely, not S&S, fatal accident possible, 1 person
affected

Negligence: Moderate

Proposed Penalty: $162

This citation alleges that two 480 volt knife-blade disconnects and two
start/stop buttons at the portal were not labeled. (Ex. P-HH). The disconnects
and buttons control separate fans, one on the surface and one underground. Employees
were exposed to a fatal injury because they could accidently deactivate and
lock out the wrong circuit when working on equipment or during an emergency. Section
57.12018 provides that “[p]rincipal power switches shall be labeled to show
which units they control, unless identification can be made readily by location.”
30 C.F.R. § 57.12018.

Frandsen testified that the labels on the electrical disconnect and
start/stop buttons for the underground and surface fans had faded and were no
longer legible. (Tr. 219). He explained that the disconnects and start/stop
buttons are principal power switches. (Tr. 221). He further explained that he
could not easily identify what these components controlled since he could not
see either the underground or surface fans from the switches. (Tr. 221).  It was
not obvious where the cables went. (Tr. 222). He explained that, if you have to
start tracing the cables to see what they control, then identification cannot
be made readily by location, and there is a violation of the standard. (Tr.
222).

I find that Silver Queen violated the cited standard. Given that these
switches controlled the underground and surface fans, I find that they were
principal power switches. See FMC Corp., 6 FMSHRC 1294, 1299 (May 1984)
(ALJ) (affirming a violation of 30 C.F.R. § 57.12–18, the predecessor standard
to the one at issue, where a switch which controlled a fan was not labeled). I
credit the inspector’s testimony that the labels were not legible and that he
could not readily identify what the various electrical components controlled. Consequently,
I find that a violation of the standard existed.

Frandsen testified that an injury was unlikely because the few miners
that worked at the mine were familiar with the switches. (Tr. 220). He
explained that, in the event one of the wrong disconnects or switches was
locked out, a miner could get fatally electrocuted. (Tr. 220).

I find that the inspector’s gravity designations are appropriate. Although
the miners may have been aware of what components controlled which equipment, a
serious injury could certainly occur if a miner worked on a piece of equipment
that he mistakenly thought was locked out. See FMC Corp., 6 FMSHRC 1294,
1299 (May 1984) (ALJ).

Frandsen determined that the operator exhibited moderate negligence. (Tr.
221). He testified that labels were present, but had been allowed to fade to
the point where they were illegible. (Tr. 222).

I find that the violation was the result of Silver Queen’s low negligence.
Silver Queen had taken steps to satisfy the standard in the past, as evidenced
by the presence of labels. It is understandable that a small mine like this
one, where only a few individuals would ever be regularly working with these
electrical disconnects and buttons, could fail to notice labels slowly fading
over time. The few miners who used these components were so familiar with them
that Frandsen found it unlikely that they would fail to properly identify the
correct component when they needed to use it or lock it out. The Secretary did
not meet his burden of proof.

Based on my findings and the penalty factors discussed below, I find that
a penalty of $100.00 is appropriate.

10. Citation
    No. 8871135

Safety Standard: 41.12

Gravity: No likelihood, not S&S, no lost workdays, no person affected

Negligence: Moderate

Proposed Penalty: $100

This citation alleges that changes to the mine’s legal identification had
not been filed by the operator. The mine’s phone number changed about one year
before the inspection. (Ex. P-LL). Section 41.12 provides, in part, that the
“operator of a coal or other mine shall, in writing, notify the appropriate
district manager” within 30 days of any changes in the information required by
section 41.11. 30 C.F.R. § 41.12.

Frandsen testified that he attempted to call the mine multiple times at the
phone number on file with MSHA, but that the number did not work. (Tr. 226). According
to Frandsen, Graham later told him that the number had been changed and he
thought he had filed the documentation with MSHA. (Tr. 225-226).

I find that Silver Queen violated the cited standard. Section 41.12, in
conjunction with section 41.11, requires that operators notify MSHA of the
mine’s telephone number and, within 30 days of a change in the telephone
number, notify MSHA of the new telephone number. 30 C.F.R. §§ 41.11-41.12. Here,
the telephone number on file with MSHA was incorrect and Frandsen was unable to
get in touch with mine personnel when needed. No testimony was offered by the
operator regarding the timing of the phone number change. Under section 41.12,
it is the mine’s responsibility to ensure that the correct information is on
file and it must bear the consequences of its failure to do so. See The Pit,
16 FMSHRC 2033, 2034 (Oct. 1994). I credit Frandsen’s testimony that Graham did
not verify that he had filed the necessary paperwork to change the mine’s
telephone number. I find that a violation has been proven.

Frandsen determined that, given that this was a paperwork violation,
there was no likelihood of an injury, and any injury would not result in lost
workdays or restricted duty. (Tr. 225). I agree with Frandsen’s assessment.

Frandsen, relying upon Graham’s statement that he thought he had changed
the phone number, determined that the mine was moderately negligent. (Tr.
225-226). I find that the Secretary did not meet his burden of proof and I
conclude that Silver Queen’s negligence was low with respect to this violation.

Based on the findings and the penalty factors discussed below, I find
that a penalty of $50.00 is appropriate due to the fact that it is a low
negligence paperwork violation.

B.
WEST 2015-574-M

In February 2015, MSHA Inspector Frandsen inspected the Silver Queen Mine
and issued six citations, as discussed below.

1. Citation
   No. 8871177

Safety Standard: 57.14100(a)

Gravity: Unlikely, not S&S, fatal accident possible, 1 person
affected

Negligence: Low

Proposed Penalty: $100

This citation alleges that the operator of a mucker failed to do a proper
pre-operational inspection prior to operating a mucker (loader). (Ex. G-1). It
is clear that the mucker operator failed to check the fire suppression system
because one of the nozzles was missing, which was readily obvious. Section
57.14100(a) provides that “[s]elf-propelled mobile equipment to be used during
a shift shall be inspected by the equipment operator before being placed in
operation on that shift.” 30 C.F.R. § 57.14100(a).

Frandsen testified that he observed a nozzle missing from part of the
fire suppression system on a mucker. (Tr. 41, 43). Frandsen has conducted
pre-operational inspections on similar equipment many times. (Tr. 41). According
to Frandsen, the fire suppression system consisted of two pieces of copper
tubing, one on each side of the mucker engine, that were used to deliver a
chemical fire suppression agent to each side of the engine in the event of an
equipment fire. (Tr. 41-43). Frandsen saw that one of the copper tubes had a red
nozzle at the end, while the other did not. (Tr. 41; Ex. G-3 pp. 2-3). The purpose
of the nozzles is to spread out the chemical agent into a fan-shaped spray to put
out fires. (Tr. 45). Without a nozzle, the chemical agent would not spray where
it is supposed to and, instead, would just shoot out and hit the rib. (Tr. 42).
Frandsen explained that the missing nozzle was obvious and should have been
found during the pre-operational inspection of the mucker. (Tr. 41-42). The
fire suppression system is a safety feature of the mucker, needs to work in the
event of a fire, and should be checked during the pre-operational inspection of
the mucker. (Tr. 42-43). Although Frandsen testified that a miner told him that
he performed a pre-operational inspection before using the mucker that day, Frandsen
found no record noting the missing nozzle. (Tr. 43, 53). Frandsen opined that
the condition had existed for some time because the end of the tubing had a lot
of scale on it, was not clean, and no one could find the missing nozzle in the
area. (Tr. 54-55).

I find that Silver Queen violated the cited standard. It was obvious that
there was no nozzle on the end of the copper tubing on one side of the mucker
engine. I credit Frandsen’s testimony and find that the nozzle is a safety
feature of the fire suppression system and needs to be inspected during the
pre-operational inspection of the mucker. Without the nozzle, the fire
suppression system is rendered useless on that side of the engine. I credit
Frandsen’s testimony that the nozzle had been missing for some time, as
evidenced by the rust and scale on the end of the tubing. Given the obviousness
of the condition, I find that the equipment operator did not conduct an
adequate inspection. Consequently, I affirm the fact of violation.[5]

Frandsen testified that, although an injury was unlikely due to the
presence of a fire extinguisher on the mucker and the properly functioning fire
suppression system on the other side of the engine, if an injury were sustained
it was reasonably likely to be fatal. (Tr. 45-46, 52). Frandsen explained that
he has fought several underground mine fires and, in the event of a fire on the
mucker, smoke would either pour over the miner who was operating the mucker
and/or the fire would be between the miner and the portal. (Tr. 46). Frandsen
acknowledged that the mine is small, requiring only a 5-10 minute walk to exit,
has a ventilation system, and the miners wear self-rescuers. (Tr. 52-53).

I find that the inspector’s gravity designations are appropriate. I defer
to the inspector’s testimony that it was unlikely that the conditions created
by the violation would contribute to an injury. However, as discussed above, there
is only one way in and out of the mine. As a result, if a fire were to occur on
the mucker, a miner would be in a difficult situation. I credit Frandsen’s
testimony that, depending on the location of the mucker at the time of a fire,
a miner could either be trapped inby the fire or would have to deal with smoke
pouring over him. Given these findings, and acknowledging the seriousness of
hazards associated with underground mine fires, I find that the violation was
very serious.

In his brief, the Secretary argues that the court should find that the
violation was “S&S” despite the testimony of the inspector to the contrary.
(Sec’y Br. 12-14). The Secretary argues that decisions of the Commission make
clear that, with respect to violations relating to equipment used in an
emergency, the existence of the emergency should be assumed for purposes of the
S&S analysis. As a consequence, the court should assume that the mucker
caught fire and the lack of a nozzle on one side of the fire suppression system
created an emergency situation. The Secretary also maintains Commission case
law provides that that the presence of the fire extinguisher on the mucker
should not be considered. The Secretary states that the inspector’s testimony
supports an S&S finding given this Commission case law.

I decline to modify the citation to an S&S violation on narrow
grounds specific to the situation in this case. The Secretary did not raise this
issue at the hearing. (Tr. 40-48). Silver Queen was represented by an
inexperienced company representative. Inspector Frandsen specifically testified
that an injury was unlikely as a result of this violation. (Tr. 45). Thus,
until the Secretary filed his post-hearing brief, the Secretary’s position was
that the violation was not S&S. The Secretary’s request to modify the
citation is, in effect, a motion to amend the pleadings. I recognize that Rule
15(b)(2) of the Federal Rules of Civil Procedure provides that a “party may
move – at any time, even after judgement – to amend pleadings to conform them
to the evidence and to raise an unpleaded issue.” However, that provision
assumes that the issue was “tried by the parties’ express or implied consent.” Fed.
R. Civ. P. 15(b)(2). The S&S issue was not tried by the parties and there
was no consent to do so in this pro-se case. The Secretary’s motion to
amend the citation is DENIED.

Frandsen determined that Silver Queen exhibited low negligence based on
statements made to him by the mine that the fire suppression system was usually
checked during service every couple of weeks. (Tr. 47). According to mine
personnel, the missing nozzle had been present during the service check two
weeks prior. (Tr. 44, 46-47). The equipment operator who was in charge of
conducting the pre-operational inspection of the mucker only had two weeks of
experience. (Tr. 44).

I find that the violation was the result of Silver Queen’s low
negligence. It is clear that the subject inspection was inadequate. I find that
the fact that the mine checks the fire suppression system every few weeks, that
the nozzle had been present during the last service check, and given the
limited experience of the mucker operator who conducted the subject
pre-operational inspection, there is evidence to justify the inspector’s low
negligence determination.

Based on my findings and the penalty factors discussed below, I find that
a penalty of $100.00 is appropriate.

2. Citation
   No. 8871178

Safety Standard: 57.15004

Gravity: Reasonably likely, S&S, permanently disabling accident reasonably
likely, 2 persons affected

Negligence: Moderate

Proposed Penalty: $285

This citation alleges that two miners working underground were not
wearing eye protection and no eye protection was available underground. (Ex. G-3).
The miners had installed three rock bolts that were pressurized to about 2,700
psi using jack leg drills. Section 57.15004 provides that “[a]ll persons shall
wear safety glasses, goggles, or face shields or other suitable protective
devices when in or around an area of the mine or plant where a hazard exists
which could cause injury to unprotected eyes.”  30 C.F.R. § 57.15004.

Frandsen testified that he observed two miners whose faces were covered
with mud. (Tr. 58). The miners told Frandsen that they had been drilling and
installing Swellex rock bolts, which, when pressurized, expand to lock the
layers of rock. (Tr. 58-59). Frandsen testified that the miners did not have
eye protection with them, there was no eye protection underground, and the
miners could not produce eye protection when asked. (Tr. 58-59, 63, 64). Frandsen
explained that a miner using the drill would be exposed to oil mist, mud, rock
dust, chips, chunks and cuttings blowing back out of the drill hole with the
water. (Tr. 60, 63). This particular drill, a jack leg drill, required the
miners to use a lot of pressure to get the hole started. (Tr. 61). As a result,
the miners’ faces would be right at the jack when starting the hole, which is
the most dangerous time. (Tr. 61-62). In order to pressurize the rock bolts and
cause them to swell, 2700 psi was required, which presented an additional
hazard in case a hose or other component used to pressurize the bolts breaks. (Tr.
62).

I find that Silver Queen violated the cited standard. Miners using the
jack leg drill were exposed to flying mud and rock which were blown back out of
the drill hole. Both rock and mud present a hazard when projected toward an
individual’s unprotected eyes. Here, the two miners’ faces were covered in mud
and they told the inspector they had been drilling and installing pressurized
rock bolts. Neither miner had eye protection on, nor could either produce any
eye protection when asked to do so. Consequently, I find that a violation has
been proven.

Frandsen testified that, because the miners did not have eye protection
and could not produce any when asked, he concluded that not wearing eye
protection was a common practice at the mine. (Tr. 65). If the mine continued
this practice, it was reasonably likely to result in an eye injury, such as the
loss of sight, given all of the flying rock, dust, dirt and oil. (Tr. 66). Further,
when drilling, the miners’ faces were very close to where the rock, mud, water,
and dust projectiles were flying. If they were struck in the eye, they would lose
eyesight, which is a permanently disabling injury. (Tr. 63). Based on his
observations, he designated the citation as S&S. (Tr. 66).

I find that the violation was S&S. I find that a discrete safety
hazard existed in that the failure to use eye protection while drilling and
installing rock bolts exposed the miners’ eyes to flying rock, dust, dirt and
oil. Any of these substances, when projected at the eye, has the potential to
cause permanent damage to one’s vision. I credit Frandsen’s testimony regarding
the miners’ inability to produce any eye protection and find that it was
apparently a common practice at the mine to not use eye protection. Moreover,
given that miners using this kind of drill would be required to have their
faces close to where the projectiles were flying back out of the drill hole, I
find that that an injury was reasonably likely to occur. Clearly the loss of
sight is a serious, and potentially life altering, injury. Consequently, I find
that the violation was S&S.

Frandsen determined that the mine was moderately negligent. (Tr. 65). Miners
told Frandsen that there should be some glasses in the office. (Tr. 63). Frandsen
explained that Graham told him that that the mine had glasses and that the
miners knew they were supposed to use them. (Tr. 65).

I find that the mine was moderately negligent. It was mine management’s
job to ensure that the miners were using eye protection when needed. Although
Graham, the mine manager, told Frandsen that the mine had eye protection and
the miners knew they were supposed to use it, the miners did not do so, nor
could they produce any when asked by the inspector. Frandsen explained that miners
“hate” wearing eye protection because of the need to constantly clean the
glasses. (Tr. 64). I credit the inspector’s testimony on this issue and defer
to his finding of moderate negligence.

In his brief, the Secretary maintains that the
evidence establishes that the violation was the result of Silver Queen’s high
negligence. (Sec’y Br. 18-19). The Secretary relies on MSHA’s penalty
regulations in making this argument. 30 C.F.R. § 100.3(d) Table X. I am not
bound by the Secretary’s Part 100 regulations and I decline to follow the
classifications that MSHA uses in defining the levels of negligence.[6]
Moreover, counsel for the Secretary asked the inspector “could you have
designated this as a higher level of negligence?” (Tr. 65). The inspector
replied, in part, “No. They had some mitigating evidence.” Id. Thus, the
Secretary tried to raise this issue at hearing but the inspector did not agree.
For the reasons set forth above and set forth with respect to the Secretary’s
motion to amend Citation No. 8871177, the Secretary’s motion to amend this
citation is DENIED.

Based on my findings and the penalty factors discussed below, I find that
a penalty of $550.00 is appropriate. I raised the penalty above that proposed
by the Secretary because of the serious nature of the violation.

3. Citation
   No. 8871179

Safety Standard: 57.18006

Gravity: Reasonably likely, S&S, permanently disabling injury, 1
person affected

Negligence: Moderate

Proposed Penalty: $263

The citation alleges that the operator had not ensured that a new miner
was using PPE or following safe work practices. (Ex. G-5). This miner had about
two weeks of underground experience and had helped install rock bolts without
safety glasses. He was also the miner who operated the mucker, discussed above,
without performing a competent pre-operational check. Section 57.18006 provides
that “[n]ew employees shall be indoctrinated in safety rules and safe work
practices.” 30 C.F.R. § 57.18006.

Frandsen testified that one of the two miners involved in the eye
protection citation, discussed above, was a new and inexperienced miner, while
the other was an experienced miner. (Tr. 77). According to Frandsen, the
experienced miner was not modeling safe mining practices for the inexperienced
miner. (Tr. 78). In particular, Frandsen noted that the experienced miner was allowing
the inexperienced miner to drill without eye protection. (Tr. 79). Further, the
experienced miner did not make sure that the inexperienced miner conducted a
proper pre-operational inspection of the mucker, also discussed above. (Tr.
80). Frandsen explained that the new miner had incorrectly received “experienced
miner training,” had not been underground before, and needed to have “40 hours
[of] inexperienced miner training.” (Tr. 80-81, 86-87). Frandsen testified
that, based on his observations, he could have issued multiple 104(g) orders to
the mine for the inadequate training of the new miner. (Tr. 81).

I find that Silver Queen violated the cited standard. Clearly this new
miner had not been trained in safe work practices. Both the new miner and
experienced miner failed to wear eye protection when hazards necessitating such
protection were present. I agree with the inspector that the experienced miner
failed to set an example for the new miner and did not indoctrinate him in the
safety rules and safe work practices. The same could be said with regard to the
citation issued for the inadequate pre-operational inspection. The violation is
affirmed.

Frandsen testified that, because the new miner was not being trained
correctly, it was reasonably likely that a permanently disabling injury would
be sustained and that the violation was S&S. (Tr. 82-84). He explained that
the poor example set by the experienced miner, in particular the failure of
that individual to wear eye protection, should make “the hair on the back of
your head . . . stand up.” (Tr. 82). Further, he noted multiple other dangers
that could stem from the experienced miner’s failure to set a good example,
namely, improper pre-operational equipment inspections, roof and rib concerns
and knowing how to safely bar them down, and having proper personal protective
equipment. (Tr. 82-83, 85). Frandsen explained that the miner’s lack of
training would have eventually led to the loss of eyesight due to drilling
without eye protection. (Tr. 83).

I find that the violation was S&S. I find that a discrete safety
hazard existed in that the inadequate training regarding safety rules and safe
work practices made the new miner a “hazard to himself and to others.” 30
U.S.C. § 814(g)(1). Here, as discussed above, the new miner was lucky to escape
injury while drilling without eye protection. Moreover, also discussed above,
the miner clearly had not been properly trained on how to conduct a proper
pre-operational inspection, as evidenced by his failure to note the obvious
condition of the missing nozzle on the fire suppression system. Consequently, I
find it reasonably likely that, assuming continued mining operations, this
miner would have injured either himself or another miner. In the event an
injury was sustained as a result of the lack of training that resulted in the
citations discussed above, the injuries would be serious. I affirm the S&S
designation.

Frandsen determined that the mine was moderately negligent. (Tr. 84). Although
he believed that the experienced miner did not set a good example, he felt that
putting the new miner with the experienced miner was a mitigating circumstance.
(Tr. 84).

I find that the mine was moderately negligent. I agree with Frandsen that
having the new miner work with an experienced miner was a good decision. However,
the experienced miner failed to teach safe work practices to the new miner. Management
has a responsibility to not only train its miners, but also to ensure that the
miners comply with the training. The mine failed to do so. Consequently, I find
affirm the inspector’s moderate negligence determination.

As with the previous citation, the Secretary
maintains that the evidence establishes that the violation was the result of
Silver Queen’s high negligence. (Sec’y Br. 26). Inspector Frandsen testified
that the violation was caused by management’s moderate negligence. (Tr. 85). The
Secretary did not attempt to modify the citation at the hearing and did not
raise this issue until it filed his post-hearing brief. For the same reasons
set forth above and set forth with respect to the Secretary’s motion to amend
Citation No. 8871177, the Secretary’s motion to amend this citation is DENIED.

Based on my findings and the penalty factors discussed below, I find that
a penalty of $550.00 is appropriate. As with the previous violation, I raised
the penalty based on the serious nature of the violation.

4. Citation
   No. 8871180

Safety Standard: 57.20011

Gravity: Unlikely, not S&S, lost workdays or restricted duty, 1
person affected

Negligence: Moderate

Proposed Penalty: $100

The citation alleges that warning signs were not in place to warn miners
that rocks could fall from an open hole at the South drift raise. (Ex. G-7). The
citation further states that miners travel past the “area daily and regularly
throughout the shift.” Id. The miners were exposed to broken bone
injuries from falling and rolling rock. Section 57.20011 provides that “[a]reas
where health or safety hazards exist that are not immediately obvious to
employees shall be barricaded, or warning signs shall be posted at all
approaches.” 30 C.F.R. § 57.20011. The safety standard also requires that any
warning signs “shall be readily visible, legible, and display the nature of the
hazard and any protective action required.” Id.

Frandsen testified that he observed a hole in the roof of the mine. (Tr.
90). The mine had blasted the hole while evaluating whether to develop a raise
to another level. (Tr. 92). Frandsen explained that the hole presented a hazard
because rocks could fall from the hole and strike a miner. (Tr. 92). A lunch
box was seen in the area and miners regularly walk through this area when going
into and out of the mine. (Tr. 92). There were no warning signs in the area to
indicate the presence of the hole and, according to Frandsen, the hole was not
obvious. (Tr. 90, 96, 97). Frandsen did not immediately notice the hole. (Tr.
96-97, 101-102). Rock was piled up below the hole. (Tr. 96-97; Ex. G-8 p. 2). Frandsen
initially assumed that the rock was just a muck bay where the muck was being
temporarily stored. (Tr. 96-97). There were all different sizes of rock in the
pile. (Tr. 99). It was not until he saw ventilation tubing in the area that he
discovered the hole. (Tr. 92, 97, 102). Although Frandsen testified that the
mine told him the hole was boarded up, that was not the case. (Tr. 93-94, 100).
Rather, there were a few boards in the hole and there were plenty of gaps,
including a ladder opening, through which rock could fall. (Tr. 94; Ex. G-8 p.
3).

I find that Silver Queen violated the cited standard. I find that a
hazard existed. The hole had not been boarded up and sizeable rocks could
easily fall through the openings seen in the picture taken by the inspector. (Ex.
G-8 p. 3). I credit Frandsen’s testimony that rocks falling from the hole could
have struck and injured a miner walking in the area. I further find that the
hazard was not obvious. I credit the inspector’s testimony that he did not initially
see the hole when he entered the area. Consequently, I find that the hazard was
not obvious. Given that no barricades or warning signs were present to alert
persons to the non-obvious hazard presented by the hole, I find that a
violation has been proven.

Frandsen testified that, although an injury was unlikely because the muck
pile would probably stop falling rocks from rolling too far and he was not
certain what was up in the hole, if a miner were hit by a rolling rock he could
suffer an injury that would result in lost workdays or restricted duty. (Tr. 96,
101). Frandsen explained that, although he thought the rocks were at the angle
of repose, a larger rock could bounce and roll off the pile and strike a miner
in the ankle, leg, or foot, causing broken bones, strains, or sprains. (Tr. 96,
99-100). A preponderance of the evidence supports the inspector’s gravity
designation.

Frandsen determined that the mine was moderately negligent based on
comments made by a mine examiner who said he knew the hole was there, but did
not see it as a problem since rocks would not fall on anyone’s head. (Tr. 98). However,
according to Frandsen, the individual did not consider the possibility of rocks
rolling and hitting miners. (Tr. 98). I affirm the inspector’s moderate
negligence determination.

Based on my findings and the penalty factors discussed below, I find that
a penalty of $100.00 is appropriate.

5. Citation
   No. 8871182

Safety Standard: 57.12028

Gravity: Reasonably likely, S&S, fatal injury reasonably likely, 1
person affected

Negligence: Moderate

Proposed Penalty: $585

This citation alleges that the operator failed to perform a ground
continuity test after a new cable was installed between the generator on the
surface and the two fan control stations at the portal. (Ex. G-9). The cable
was changed out on or about January 4, 2015 by the operator’s employees who had
no electrical experience. Miners were exposed to fatal electrocution or electrical
shock. Section 57.12028 provides that “[c]ontinuity and resistance of grounding
systems shall be tested immediately after installation, repair, and
modification and annually thereafter.” 30 C.F.R. § 57.12028. The safety
standard also requires that the operator keep a record of such examinations.

Frandsen testified that, at the direction of an electrical contractor, Graham
and some miners changed out a 480 volt rated three phase main power cable between
a generator and the controls for two fans used to ventilate the mine. (Tr. 107-109,
111). The mine failed to conduct a ground continuity test following the
installation of the new cable. (Tr. 107).

I find that Silver Queen violated the cited standard. I agree with the
inspector that, under the cited standard, following the installation of the new
cable, a ground continuity test was required. The operator did not conduct a
ground continuity test following the installation. Consequently, I find that a
violation occurred.

Frandsen testified that the mine’s failure to conduct a ground continuity
test following the installation of the cable was reasonably likely to result in
a fatal accident and designated the citation as S&S. (Tr. 114). Frandsen
explained that the miners who installed the cable had limited electrical experience.
(Tr. 109). Although they had been task trained by the electrical contractor on
how to conduct a ground continuity test, neither the contractor nor the miners could
remember if they were trained on the need to conduct the test following the
installation, which is something Frandsen said an experienced electrician would
have known to do. (Tr. 109-111). Frandsen explained that when electrical work
is done by someone with little electrical experience the risk is extremely
high. (Tr. 114). This cable is not like a household extension cord and,
instead, is part of a 480 volt system that requires someone replacing it to
wire it, use proper lugs and fittings, check the rotation, and hook it up to
the grounding. (Tr. 114). Failure to properly ground the cable could result in
a fatal electrocution, especially because the fan controls that were supplied
power by the cable were located in an area where there was a lot of water. (Tr.
115-116). By failing to conduct the ground continuity test the mine ran the
risk that the cable was ungrounded, which could result in a loss of life. (Tr.
112).

I find that the violation was S&S. I find that a discrete safety
hazard existed in that by failing to conduct a ground continuity test, miners
could not know if they were at risk of electrocution when starting fans that
were supplied power by this cable. The miners who changed the cable had little
electrical experience and, although they knew how to do a ground continuity
test, they failed to do so. Further, I credit the inspector’s testimony that the
risk of injury is high when miners with minimal electrical knowledge conduct this
kind of work. Consequently, I agree that, assuming continued mining operations,
it was reasonably likely that an injury would be sustained as a result of the
mine’s failure to conduct a ground continuity test as required by the standard.[7]
The inspector did not know whether the cable passed the ground continuity test
without any corrections being made when the test was performed to abate the
citation. (Tr. 117-18). Nevertheless, I find that the hazard created by the
violation was reasonably likely to lead to a serious injury. 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). The Secretary established that the violation was S&S.

Frandsen determined that the violation was the result of Silver Queen’s moderate
negligence. (Tr. 116). He believed mitigating circumstances existed because the
mine replaced the cable for safety reasons. (Tr. 116). Moreover, according to
Frandsen, the miners told him that they could not remember if the electrical
contractor told them that they needed to re-test the ground continuity after
the new cable was installed. (Tr. 116-117).

I credit the inspector’s testimony and find that Silver Queen was
moderately negligent. Although the mine’s decision to replace the old cable is
commendable, the failure to test the cable after installation demonstrates
moderate negligence.

As with two other citations, the Secretary
maintains that the evidence establishes that the violation was the result of
Silver Queen’s high negligence. (Sec’y Br. 31). Inspector Frandsen testified
that the violation was caused by management’s moderate negligence. (Tr. 116). The
Secretary did not attempt to modify the citation at the hearing and did not
raise this issue until he filed his post-hearing brief. For the same reasons
set forth above and set forth with respect to the Secretary’s motion to amend
Citation No. 8871177, the Secretary’s motion to amend this citation is DENIED.

Based on my findings and the penalty factors discussed below, I find that
a penalty of $584.00 is appropriate.

6. Citation
   No. 8871183

Safety Standard: 57.18002(a)

Gravity: Unlikely, not S&S, lost workdays or restricted duty, 1
person affected

Negligence: Moderate

Proposed Penalty: $100

The citation alleges that the operator had not designated a competent
person to perform workplace examinations for the surface area of the mine. (Ex.
G-11). The citation further states that surface areas include repair benches,
bulk oil and fuel storage areas, the explosive magazine, and other work areas. The
inspector stated that miners could be injured because the areas were not
examined and noted that the mine manager said that every miner regularly looks
over the area because cows travel through the site and tear things up. Section
57.18002(a) provides, in part, that “[a] competent person designated by the
operator shall examine each working place at least once each shift for
conditions that any adversely affect safety or health.” 30 C.F.R. § 57.18002(a).

Frandsen testified that Graham told him that the mine did not have a
designated person to examine the surface of the mine. (Tr. 126). The surface
areas of the mine were not being inspected despite the fact that miners worked
in some of those areas daily. (Tr. 126-127). Rather, according to Frandsen,
Graham told him that if the miners saw something that was not safe, they would
fix it. (Tr. 128, 139).

I find that Silver Queen violated the cited standard. The surface had
multiple working places that were accessed daily and needed to be examined at
least once each shift. I credit Frandsen’s testimony that Graham told him that
the mine did not have a designated person who examined the surface. As a
result, I find that the violation is proven.

Frandsen testified that an injury was unlikely because the miners
generally fixed problems when they found them. Any injury was reasonably likely
to result in lost workdays or restricted duty. (Tr. 128-129). Frandsen noted
that the types of injuries generally associated with failure to examine these areas
are electrical injuries, broken bones, tripping injuries, and housekeeping,
fire and smoke related injuries. (Tr. 129). I agree with the inspector’s
gravity findings.

Frandsen determined that the mine was moderately negligent based on what
Graham told him about the miners fixing problems on the surface when they found
them. (Tr. 129). Frandsen noted that, aside from this citation, he did not see
any violations on the surface. (Tr. 129). I affirm the inspector’s moderate
negligence determination.

Based on my findings and the penalty factors discussed herein, I find
that a penalty of $100.00 is appropriate.

II. APPROPRIATE CIVIL PENALTY

Section 110(i) of the Mine Act sets
forth the criteria to be considered in determining an appropriate civil
penalty. 30 U.S.C. § 820(i). Silver Queen had a history of 13 violations during
the 15 months preceding the issuance of the subject citation, but only two were
S&S. Respondent is a small operator that worked just over 8,000 hours in
2014. The violations were abated in good faith. The operator did not establish
that the proposed penalties will have an adverse effect upon its ability to
continue in business.

III. ORDER

Based on the penalty
criteria, I assess the following civil penalties:

Citation/Order No.                              30
C.F.R. §                             Penalty

WEST 2015-448-M

8871120                                             57.6306(g)                          $1,500.00

8871121                                             57.6202(a)(5)                          162.00

8871122                                             57.14132(b)(1)                        540.00

8871123                                             57.4102                                   162.00

8871124                                             57.12032                                 162.00

8871125                                             57.13011                                 100.00

8871126                                             57.8528                                   100.00

8871127                                             57.11053(c)                             100.00

8871134                                             57.12018                                 100.00

8871135                                             41.12                                         50.00

WEST 2015-574-M

8871177                                             57.14100(a)                             100.00

8871178                                             57.15004                                 550.00

8871179                                             57.18006                                 550.00

8871180                                             57.20011                                 100.00

8871182                                             57.12028                                 584.00

8871183                                             57.18002(a)                             100.00

TOTAL PENALTY                                               $4,960.00

For the reasons set forth above,
the citations are AFFIRMED or MODIFIED as set forth above. The
Silver Queen Mine LLC is ORDERED TO PAY the Secretary of Labor the sum
of $4,960.00 within 40 days of the date of this decision.[8]

/s/ Richard W. Manning

Richard
W. Manning

Administrative
Law Judge

Distribution:

John Lauer, Esq., Office of the Solicitor, U.S. Department of
Labor, 1244 Speer Blvd., Suite 216, Denver, CO 80204-3518 (Certified Mail)

D. Scott Horn, Conference & Litigation Representative, Mine Safety & Health
Administration, 991 Nut Tree Road, 2nd Floor, Vacaville, CA 95687
(First Class Mail)

Trenton
Davis, The Silver Queen Mine LLC, 1477 Menlo Avenue, Clovis, CA 93611
(Certified Mail)

[1]
Clause (3) requires MSHA inspectors to conduct
inspections to determine whether an imminent danger exists at the mine and
clause (4) requires inspectors to determine whether the mine is in compliance
with safety and health standards or with any citation or order.

[2]
Inspector Frandsen has been an inspector with
MSHA for about eleven years. (Tr. 31). He is trained as an electrical
inspector. Prior to his employment with MSHA he worked as a mechanic at various
mines; acquired electrical papers; and was a maintenance supervisor and
production supervisor. (Tr. 32-33).

[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] At hearing, Respondent’s representative referenced a
section of MSHA’s Program Policy Manual which deals with “Barricades and
Warning Signs.” (Tr. 205-206). However, that particular section of the Program
Policy Manual is aimed at providing interpretive guidance on sections 56.20011
and 57.20011, neither of which is at issue here.

[5] At hearing, the operator’s representative moved to
vacate this citation, arguing that “[t]here was no chance of any fatal accident
occurring. The mine had abundant ventilation, a very short walk outside, miner
had a self-rescuer, chances of fatality would be nil.” (Tr. 52). Respondent’s
arguments are directed at the question of gravity, which is addressed in this
decision. Respondent’s motion to vacate the citation is DENIED.

[6]
In determining whether an operator has met its
duty of care, I consider “what actions would have been taken under the same
circumstances by a reasonably prudent person familiar with the mining industry,
the relevant facts, and the protective purpose of the regulation.” Jim
Walter Res. Inc., 36 FMSHRC 1972, 1975 (Aug. 2014) (footnote omitted).

[7] During cross-examination the representative for the
mine asked multiple questions regarding whether the inspector checked the cable
to see if it was in fact grounded. (Tr. 120-123). However, the question whether
the cable was grounded at the time of the inspection does not resolve the issue
before the court. Rather, the relevant issue is whether the mine checked to see
if it was grounded. Here, the mine did not determine whether the cable was
grounded and, as a result, could not have known if the cable was safe for use.

[8] 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