Secretary of Labor v. Wm. J. Clark Trucking Service, Inc.

Plain-English summary

Wm. J. Clark Trucking used an independent mechanic to repair mobile and stationary mining equipment at its sand and gravel pit, but provided him no mine-safety training. Judge Margaret A. Miller held that the mechanic was a miner under Part 46 because he worked at the mine intermittently and repeatedly, averaging about 13 days per month during the main season. Working in the repair shop did not change that result because equipment maintenance is a mining operation at a mine site, and being accompanied by an experienced miner did not substitute for mandatory new-miner training. The Judge affirmed the S&S designation and high negligence because the untrained mechanic worked around hazardous equipment, repaired equipment for others, and the operator had prior training violations. She assessed a $6,624 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 46.5(a)
• Outcome: The new-miner training violation was affirmed as S&S and highly negligent, with a $6,624 penalty.
• Key point: A contract maintenance worker who repeatedly works at a mine is a miner entitled to comprehensive training, even if the worker is intermittent, works partly in a shop, or is accompanied by experienced personnel.

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

TELEPHONE: 303-844-5266
/ FAX: 303-844-5268

September 9, 2015

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION, (MSHA),

Petitioner,

v.

WM J CLARK TRUCKING SERVICE,

INC.,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. WEST 2015-55

A.C. No. 04-04119-361451

Mine: Clark Pit

DECISION

Appearances:               Timothy Turner, United States
Department of Labor, Office of the Solicitor, Denver, Colorado, for Petitioner;

William J. Clark, pro
se, King City, California, for Respondent.

Before:                                    Judge Miller

This case is before me on a petition
for assessment of a civil penalty filed by the Secretary of Labor against
William J. Clark Trucking Service, Inc., (“Clark”) pursuant to section 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d) (“the
Act”). This docket involves eight alleged violations, seven of which were
issued pursuant to section 104(a) of the Act, and one of which was issued
pursuant to section 104(g)(1) of the Act. The Secretary originally proposed
penalties totaling $8,752.00. Prior to the hearing, the parties reached a
settlement of seven of the alleged violations. Respondent contests the sole
remaining violation, Order No. 8703429. The parties presented testimony and
evidence at a hearing held on July 30, 2015, in Monterey, California.

I.  FINDINGS OF
FACT AND CONCLUSIONS OF LAW

Order No. 8703429 was issued by
MSHA Inspector Bryan Chaix on July 23, 2014, pursuant to section 104(g)(1) of
the Act. The order alleges that Respondent violated 30 C.F.R. § 46.5(a) by
failing to ensure that a mechanic at the mine had received new miner
comprehensive training. The inspector determined that the condition was
reasonably likely to result in a fatal injury, was significant and substantial,
and was a result of the operator’s high negligence. The Secretary has proposed
a penalty of $6,624.00 for this alleged violation.

The parties have stipulated to the
jurisdiction of the Mine Safety and Health Administration (“MSHA”) and the
Federal Mine Safety and Health Review Commission. The

parties agree that Clark is a small operator and
that Secretary’s Exhibit 1 accurately reflects its history of assessed
violations.

The primary issue before the Court
is whether a mechanic who worked at the mine on an intermittent basis is
required to have comprehensive training. I find that he does, and that the
Secretary has proven the violation as cited.

The
Clark Pit

Wm. J. Clark Trucking Service’s
Clark Pit is a surface sand and gravel mine in Monterey County, California. The
mine is a small operation with twelve or fewer employees. The mine does not
have a full-time mechanic, but rather contracts with an independent mechanic,
Hans Wittström, when repairs are needed. The mine employees perform minor
maintenance on mine equipment, and Wittström is called for more complex
repairs. Wittström testified at hearing that when he is working in the pit, he
is always within sight of the foreman or another miner, and that if the other
miner is not in his immediate presence, it is because there are no hazardous
conditions present.

The Secretary introduced Wittström’s
work orders for jobs done for Clark in the two years prior to the violation at
issue. Sec’y Ex. 25. The work orders show that Wittström worked for Clark
twelve days in June 2014, the month prior to the inspection resulting in the
alleged violation. Wittström worked on a crane, a scale, a scraper, a gate, a
car lift, and a pickup truck that month, as well as on a Mercedes. On most of
the days, he worked between six and eight hours and work was done either in the
mine shop or in the pit area. In May 2014, Wittström worked fifteen days for
Clark, usually between six and eight hours. He worked on a water truck, the
plant gear box, a forklift, a load truck, and a cone crusher, as well as on a boat
and the Mercedes. In April 2014, Wittström worked for Clark ten days on a truck
as well as the boat, the Mercedes, a Land Rover, and a Porsche. In March 2014, he
worked for Clark thirteen days, including on a trap wagon, several trucks, a
compactor, a cone crusher, loaders, and the Mercedes. Wittström worked only one
day for Clark in February 2014, and five in January 2014. This is consistent
with the seasonal operation of most sand and gravel mines in the region. The
remaining work orders extending back to August 2012 indicate a similar pattern
of work: Wittström worked for Clark an average of thirteen days per month from
April through November, and an average of three days per month from December
through March. The most he worked in one month was nineteen days, in both April
2013 and October 2012. He worked zero days in January and February 2013.

The work orders along with Wittström’s
testimony at hearing demonstrate that the mechanic had, over the course of the
past few years, worked on mobile and stationary equipment at the mine,
including loaders, dozers, the crusher, guards and conveyors, as well as
personal vehicles. Some of the work was done in the pit and some was done in
the shop located at the mine.

MSHA’s Inspection

On July 22, 2014, MSHA Inspector
Bryan Chaix traveled to the Clark Pit to conduct an inspection. Chaix has been
a mine inspector for eight years, and has had training and experience not only
as an inspector but also as a miner. In his initial inspection, Chaix issued a
number of citations for faulty equipment and withdrew three miners who had not
been adequately trained. The next day, July 23, 2014, he was driving by the pit
on the way to another mine when he observed a number of miners working in the
pit area. Chaix decided to revisit the mine, since he did not believe the three
miners could have received the required annual refresher training in the time since
he withdrew them the previous day. As he approached the mine, Chaix observed a
truck engaged in dumping, which the foreman later told him was recycling work. Chaix
next encountered Wittström, the mechanic, working to repair the equipment that
Chaix had cited the previous day. Chaix had not observed Wittström on his
previous visit to the mine.  

Chaix discussed with the foreman
and Wittström the duties assigned to Wittström, the hazards he was exposed to,
and the amount of time he spent at the mine.  They informed Chaix that Wittström
had received no mine safety training at all. At hearing, Chaix noted that he
had cited a number of violations on mobile equipment on July 22 and testified
that, in his view, the equipment was not being maintained by a person who knew
and understood the requirements of the MSHA regulations. Based on his
observations at the mine, Chaix issued Order No. 8703429, alleging a violation
of 30 C.F.R. § 46.5(a) for failure to provide comprehensive new miner training
to Wittström. According to Chaix, the mine operator was aware of the training requirement
and had been cited under the same standard during a previous inspection. Chaix
ordered the mine to withdraw the mechanic until he had completed new miner
training.

A.    
Violation

The Secretary alleges that Clark
violated 30 C.F.R. § 46.5(a), which requires a mine operator to provide any
“new miner” with 24 hours of specified training within 90 days of his first day
of work. A “new miner” is defined as “a person who is beginning employment as a
miner with a production-operator or independent contractor and who is not an
experienced miner.” 30 C.F.R. § 46.2(i).

Clark does not argue that Wittström
is an “experienced miner,” but rather that he is not a “miner” at all. Persons
who are present at the mine but do not fall under the definition of “miner” are
subject to less demanding training requirements: they must either receive
site-specific hazard awareness training or be accompanied at all times by an
experienced miner. 30 C.F.R. § 46.11.

A “miner” for purposes of § 46 is
defined as follows:

(1)(i)
Any person, including any operator or supervisor, who works at a mine
and who is engaged in mining operations. This definition includes
independent contractors and employees of independent contractors who are engaged
in mining operations; and

(ii)
Any construction worker who is exposed to hazards of mining operations.

(2)
The definition of “miner” does not include scientific workers; delivery
workers; customers (including commercial over-the-road truck drivers); vendors;
or visitors. This definition also does not include maintenance or service
workers who do not work at a mine site for frequent or extended periods.

30
C.F.R. § 46.2(g) (emphasis added).

Here, there is no dispute that Wittström
was a mechanic who regularly repaired and maintained mobile and stationary mining
equipment at the mine site. Accordingly, I find that he was engaged in “mine
operations,” and that he was a “maintenance worker.” The issue of whether he
was required to have comprehensive new miner training thus turns on whether he
worked “at a mine site for frequent or extended periods.” 30 C.F.R. § 46.2(g).

“Frequent” and “extended” are not
further defined in the regulations. The MSHA Program Policy Manual provides
some guidance, defining “frequent” as “a pattern of exposure to hazards at
mining operations occurring intermittently and repeatedly over time.” III MSHA,
U.S. Dep’t of Labor, Program Policy Manual, Part 46, at 20 (2014) (“PPM”).
The manual defines an extended period as “exposure to hazards at mining
operations of more than five consecutive work days.” Id. The terms are
also discussed in the ALJ decision Kent Coal Mining Company, 12 FMSHRC
126 (Jan. 1990) (ALJ).[1]
In that case, the judge found that two workers who had performed most of the
drilling at a surface coal mine in the previous five years, averaging three or
four days per week at the mine, had worked at the mine for “frequent or
extended periods.” Id. at 131. In contrast, two workers who had drilled
at the site only once prior to the violation were governed by a separate
training provision for short-term workers. Id.

In this case, Wittström’s
testimony and work orders show that in the two years prior to the violation, he
worked for Clark an average of thirteen days per month from April through
November, and three or four days per month from December through March. He
sometimes worked only a few hours, but more often worked a full day. This is
the type of “intermittent and repeated” presence described in the MSHA Program
Policy Manual as “frequent.” See III PPM, Part 46, at 20. It is
also similar in scope to the three or four days per week worked by the drillers
who were found to be “miners” in Kent Coal Mining Company. 12 FMSHRC at
131.

Clark argues that Wittström should
not be considered a miner because much of his work was done in the shop adjacent
to the pit rather than in the pit itself. However, a “mine site” for purposes
of the training regulations is “an area of the mine where mining operations
occur.” 30 C.F.R. § 46.2(f). Since the shop is used for the “maintenance and
repair of mining equipment,” a type of “mine operation” under the regulations,
it clearly qualifies as a “mine site.” 30 C.F.R. § 46.2(f), (g), (h). Clark also
insists that it is impossible to tell from Wittström’s work orders whether he
was working at the mine or at another location, such as Clark’s separate landscaping
yard. However, the work orders normally indicate an alternate location when Wittström
was not working at the Clark Pit. Jobs with those indications were not included
in the calculation of Wittström’s time at the mine.

Based on the above analysis, I
find that Wittström worked at the mine site on a “frequent” basis and so was a
“miner” under § 46 who was required to have comprehensive new miner training.

Clark additionally argues that the
mine has complied with regulations by ensuring that when Wittström is at the
mine, he is always accompanied by another miner. Clark directs the Court’s
attention to an ALJ decision in which a mine was found not to be in violation
of hazard training standards where workers were accompanied by an experienced
miner with knowledge of the specific hazards in the mine. Apex Quarry LLC,
36 FMSHRC 211 (Jan. 2014) (ALJ). But while regulations governing hazard
training permit this arrangement, the new miner training provision does not:
new miner training is mandatory for miners. Because I find that Wittström was a
miner who was required to have but did not receive comprehensive training, I
conclude that Clark violated 30 C.F.R. § 46.5(a).

B.    
 Gravity and S&S

The Secretary asserts that Clark’s violation created
the reasonably likely risk of fatal injury and that it was significant and
substantial (“S&S”). A “significant and substantial” violation is described
in section 104(d)(1) of the Mine Act as a violation “of such nature as could
significantly and substantially contribute to the cause and effect of a coal or
other mine safety or health hazard.” 30 U.S.C. § 814(d)(l). A violation is
properly designated significant and substantial “if based upon the particular
facts surrounding that violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a reasonably
serious nature.” Cement Division, National Gypsum Co., 3 FMSHRC 822, 825
(Apr. 1981).

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan.
1984), the Commission explained:

In
order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of
Labor must prove: (1) the underlying violation of a mandatory safety standard;
(2) a discrete safety hazard--that is, a measure of danger to safety--contributed
to by the violation; (3) a reasonable likelihood that the hazard contributed to
will result in an injury; and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.

The difficulty with finding a violation S&S
normally comes with the third element of the Mathies formula, in which
the Secretary must establish that there is a reasonable likelihood that the
hazard will result in an injury. The Commission has explained that the third
element of the formula “requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event in which
there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836
(Aug. 1984). The Commission discussed the third element of the Mathies
test in Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257
(Oct. 2010) (affirming an S&S violation for using an inaccurate mine map). The
Commission clarified that the “Secretary need not prove a reasonable likelihood
that the violation itself will cause injury,” but rather that the hazard
created would cause an injury. Id. at 1280-81. The Commission reaffirmed
its position in Cumberland River Coal, 33 FMSHRC 2357, 2365 (Oct. 2011).

In Lehigh Southwest Cement, 33 FMSHRC 3229,
3243 (Dec. 2011) (ALJ), Judge Paez upheld the S&S designation for a
violation of § 46.5(a), finding that the failure to provide new miner training
resulted in “the hazard of a partially-trained miner[.]” Specifically, the
judge noted that the miner was working in close proximity to heavy mobile
equipment, which created a reasonably likely risk that a fatal injury would
occur. Id. at 3242. The judge also relied on a provision of the Mine
Act, which recognizes that a miner who has not received the requisite safety
training is “a hazard to himself and to others.” 30 U.S.C. § 814(g)(1).  

Applying the Mathies test to the case at hand, I find
that the Secretary has established the first element by demonstrating the
violation of a mandatory safety standard. The Secretary has also established
that the failure to provide new miner training created the hazard of an
untrained miner, satisfying the second element of the Mathies test. Here,
the untrained miner was working on and around mining equipment and in the area
where crushing and mining activities were taking place without understanding
the attendant hazards and safety requirements. Additionally, he was responsible
for repairing equipment for others to use, but had not been trained in the
safety regulations applicable to that equipment. This hazard was a danger both
to the miner himself and to others at the mine, and was reasonably likely to
result in a serious injury, establishing the third and fourth elements of the Mathies
test. Accordingly, I conclude that this violation was S&S.

C.    
 Negligence

MSHA Inspector Chaix determined
that the violation was a result of high negligence on the part of the operator.
He based his determination on the fact that the mine had numerous prior
training violations, including several under the standard at issue here. The
Secretary introduced at hearing a record of a previous violation under § 46.5
from March 2013 involving two miners who had not received new miner training. Sec’y
Ex. 6. Chaix further expressed that he believed training was a pervasive
problem at the mine: he witnessed multiple safety violations during his
inspections, including one involving a miner who claimed to have received
safety training the day before. The mine foreman also admitted to Chaix that
training had been a problem at the mine for several years.

In Lehigh Southwest Cement,
Judge Paez upheld the high negligence designation for a violation of § 46.5(a) for
failure to provide training to a construction worker, noting that the mine’s
safety director had admitted that he was familiar with the requirements of § 46
and that the status of construction workers as “miners” was clearly outlined in
the regulations. 33 FMSHRC at 3243. Here, while the mine owner does not claim to
have special expertise in the training regulations, the operator still had
reason to know that training was required for Wittström. The operator was put
on notice by its previous training violations that training was an area that
needed to be addressed, and this should have led it to inquire whether training
was required for all of its workers, including Wittström. While Wittström may
not have been a “miner” in the layperson’s sense of the term, he was very
clearly exposed to mine hazards on a regular basis. A reasonably careful mine
operator would have taken note of this and provided the necessary training. I
affirm the Secretary’s determination that Clark was highly negligent in
committing this violation.

II. PENALTY

The principles governing the
authority of Commission administrative law judges to assess civil penalties de
novo for violations of the Mine Act are well established. Section 110(i) of the
Mine Act delegates to the Commission and its judges “authority to assess all
civil penalties provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates
the duty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus
when an operator notifies the Secretary that it intends to challenge a penalty,
the Secretary petitions the Commission to assess the penalty. 29 C.F.R. §
2700.28. The Act requires that “[i]n assessing civil monetary penalties, the
Commission [ALJ] shall consider” six statutory penalty criteria which include
the history of violations, the size of the operator, negligence, gravity, the
ability to continue in business, and good faith abatement. 30 U.S.C. § 820(i). In
keeping with this statutory requirement, the Commission has held that “findings
of fact on the statutory penalty criteria must be made” by its judges. Sellersburg
Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff'd, 736 F.2d 1147 (7th
Cir. 1984). Once findings on the statutory criteria have been made, a judge’s
penalty assessment for a particular violation is an exercise of discretion,
which is “bounded by proper consideration of the statutory criteria and the deterrent
purpose[ s] . . . [of] the Act. Id. at 294; Cantera Green, 22
FMSHRC 616, 620 (May 2000).

The history of assessed violations
was admitted into evidence and shows a history of three training violations in
the past two years for this mine. Sec’y Ex. 1. The mine is a small operator. The
parties have stipulated that the penalty as proposed will not affect its ability
to continue in business, and that Respondent demonstrated good faith in abating
the citations and orders. Jt. Stip. ¶ 7. The gravity and negligence of the
citations and orders are discussed above. I find a penalty of $6,624.00 is
appropriate for Citation No. 8703429.

III.  ORDER

Based on the criteria in section
110(i) of the Mine Act, 30 U.S.C.§ 820(i), I assess a penalty of $6,624.00. The
other citations and orders in this docket are addressed in a separate order
granting the Secretary’s motion for partial settlement.  Accordingly, William
J. Clark Trucking Service, Inc., is ORDERED to pay the Secretary of
Labor a total penalty of $6,624.00 within 30 days of the date of this decision.

/s/ Margaret A. Miller

Margaret
A. Miller

Administrative
Law Judge

Distribution:

Timothy Turner, U.S. Department of Labor, Office of
the Solicitor, Cesar Chavez Memorial Building, 1244 Speer Boulevard, Suite 216,
Denver, CO 80204

William J. Clark, Wm. J. Clark Trucking Service,
P.O. Box 682, King City, CA 93930

[1]
Kent Coal Mining Company was decided under the separate training
requirements for surface coal mines, 30 C.F.R. § 48, but those regulations
include a provision similar to the one at issue, which requires that
maintenance workers “contracted by the operator to work at the mine for
frequent or extended periods” obtain new miner training. 30 C.F.R. §
48.22(a)(1).