Secretary of Labor v. LRock Industries

Read the official release (fmshrc.gov)

Plain-English summary

LRock Industries operated a surface sand and gravel pit where MSHA issued 19 citations involving berms, equipment defects, guarding, electrical safety, labeling, workplace examinations, and fall protection. Judge Margaret A. Miller affirmed most of the violations, including significant and substantial findings for an unguarded grinder, an exposed sand screw, a defective welder, an unbermed roadway near water, inadequate workplace examinations, and work without fall protection. She vacated the brake-light citation because the Secretary did not prove when the defect arose or that LRock failed to correct it promptly. The judge also removed one significant and substantial designation, reduced negligence on two citations, and amended the backup-alarm citation to the applicable subsection. Total penalties were reduced from $32,256 to $20,585.

Decision snapshot

• Cited standards: Multiple Part 56 standards governing berms, equipment, guarding, electrical systems, hazardous-chemical labels, workplace examinations, and fall protection
• Outcome: Eighteen citations were affirmed or modified, one was vacated, and total penalties were reduced to $20,585.
• Key point: A broad inspection supported most citations, but the Secretary still had to prove each standard's specific elements, including how long an equipment defect had existed.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19TH STREET, SUITE
443

DENVER, CO 80202-2500

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

July 24, 2017

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION,
(MSHA),

Petitioner,

v.

LROCK
INDUSTRIES,

Respondent.

CIVIL
PENALTY PROCEEDING

Docket
No. WEST 2016-0705

A.C.
No. 45-03710-416172

Mine:
LRock Pit

DECISION AND
ORDER

Appearances:   Daniel
Brechbuhl, U.S. Department of Labor, Office of the Solicitor, Denver, Colorado,
for Petitioner;

John
Bredfield, LRock Industries, Toledo, Washington, pro se for Respondent.

Before:                        Judge
Miller

This case is
before me upon a petition for assessment of civil penalties filed by the
Secretary of Labor 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 nineteen
citations issued pursuant to Section 104(a) of the Act with originally proposed
penalties totaling $32,256.00. The parties presented testimony and evidence
regarding the citations at a hearing held in Portland, Oregon, on May 25, 2017.
Based upon my review of the record, my observation of the demeanors of the
witnesses, and consideration of the parties’ legal arguments, I make the
following findings and order.

I.       
APPLICABLE
PRINCIPLES OF LAW

Establishing
a Violation

To
prevail on a penalty petition, the Secretary bears the burden of proving an
alleged violation by a preponderance of evidence. RAG Cumberland Res. Corp. ,
22 FMSHRC 1066, 1070 (Sept. 2000), aff’d 272 F.3d 590 (D.C. Cir. 2001); Jim
Walter Res., Inc. , 9 FMSHRC 903, 907 (May 1987). The Secretary may
establish a violation by inference in certain situations, but only if the
inference is “inherently reasonable” and there is “a rational connection
between the evidentiary facts and the ultimate fact inferred.” Garden Creek
Pocahontas Co ., 11 FMSHRC 2148, 2152-53 (Nov. 1989).

Significant
and Substantial

A
“significant and substantial” (“S&S”) 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 S&S “if based upon the particular facts surrounding that
violation, there exists a reasonable likelihood that the hazard contributed to
will result in an injury or illness of a reasonably serious nature.” Cement
Div., Nat’l Gypsum Co. , 3 FMSHRC 822, 825 (Apr. 1981).

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

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

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

The
Commission has explained that the term “hazard” refers to the prospective
danger the cited safety standard is intended to prevent. Newtown Energy, Inc .,
38 FMSHRC 2033, 2038 (Aug. 2016). In Newtown , for instance, the mine was
cited for a violation of a standard requiring that equipment be locked out and
tagged out while electrical work is being performed, and the Commission identified
the relevant hazard to be that of a miner working on energized equipment. Id .
The Commission has clarified that the second element of the Mathies test
addresses the likelihood of the occurrence of the hazard the cited standard is
designed to prevent. Id. at 2037-38. The judge must determine whether
there is a “reasonable likelihood” that the hazard will occur based on “the
particular facts surrounding the violation.” Id. ; see also McCoy
Elkhorn Coal Corp ., 36 FMSHRC 1987, 1991-92 (Aug. 2014); Mathies , 6
FMSHRC at 4. At the third step, the judge must determine whether the hazard, if
it occurred, would be reasonably likely to result in injury. Newtown , 38
FMSHRC at 2037. The existence of the hazard is assumed at this step. Id .;
Knox Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148, 161-62 (4th Cir.
2016). The likelihood of injury is evaluated with respect to specific
conditions in the mine. Newtown, 38 FMSHRC at 2038. Finally, the
Commission has held that the S&S determination should be made assuming
“continued normal mining operations.” McCoy , 36 FMSHRC at 1990-91.

Negligence

The
Commission has recognized that “[e]ach mandatory standard … carries with it an
accompanying duty of care to avoid violations of the standard, and an
operator's failure to meet the appropriate duty can lead to a finding of
negligence if a violation of the standard occurs.” A.H. Smith Stone Co. ,
5 FMSHRC 13, 15 (Jan. 1983). In determining whether an operator met its duty of
care, the judge must 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.” Newtown
Energy, Inc. , 38 FMSHRC 2033, 2047 (Aug. 2016); Brody Mining, LLC ,
37 FMSHRC 1687, 1702 (Aug. 2015); U.S. Steel Corp. , 6 FMSHRC 1908, 1910
(Aug. 1984).

The
standard of care is higher for mine management. Newtown , 38 FMSHRC at
2047. The Mine Act places primary responsibility for maintaining safe and
healthful working conditions in mines on operators, and they are thus expected
to set an example for miners working under their direction. Id. ; Wilmot
Mining Co. , 9 FMSHRC 684, 688 (Apr. 1987); see also 30 U.S.C. §
801(e).

II.    
FINDINGS
OF FACT AND CONCLUSIONS OF LAW

The LRock pit is a
surface sand and gravel mine located in Lewis County, Washington. LRock is an
“operator” as defined in Section 3(d) of the Mine Act, 30 U.S.C. § 803(d), and
the mine is subject to the provisions of the Mine Act and the jurisdiction of
the Commission.

All citations except
one included in this docket were issued by Inspector Benjamin Burns during
regular inspections. Burns has been an inspector for nine years and is familiar
with sand and gravel mines, although the LRock pit is not in his usual
inspection area. He began the inspection of the LRock pit on June 1, 2016. Upon
arriving at the mine, he met John Bredfield, the plant manager. Bredfield
informed Burns that he was too busy to accompany him on the inspection, and so Burns
inspected the mine on his own.

Citation No. 8872971

In the course of his inspection, Burns observed a
roadway going to the top of the stockpile at the mine. He noticed that there
was no berm at the end of the stockpile, leaving a drop-off of approximately 20
feet. The Secretary’s Exhibit 2, page 4, shows the saddle-shaped area where
there is no berm at the end of the roadway. A loader operator onsite informed
Burns that the miners had not been accessing the pile for a long time. However,
Burns did observe tire tracks in the area. He noted that the tire tracks were
25 feet from the edge. To terminate the citation, the operator added a
barricade to prevent access. Sec’y Ex. 2, p. 5.

Bredfield, the representative and sole witness for
the company, testified that the roadway had been bermed when it was in daily
use, but that the area was not active. He explained that the pile was a
stockpile that had been loaded out and was no longer used. He also stated that
the surface was sand that therefore was too soft to travel.

Burns cited the mine for a violation of 30 C.F.R. §
56.9300(a), which states in pertinent part that “Berms or guardrails shall be
provided and maintained on the banks of roadways where a drop-off exists of
sufficient grade or depth to cause a vehicle to overturn or endanger persons in
equipment. . . .” [1]

LRock argues that the area was not a “roadway” within
the meaning of the standard because it was no longer in use at the time of the
inspection, and therefore no berms were required. The term “roadway” is not
defined in the regulations, but the Commission has found that an area is a
roadway “where a vehicle commonly travels its surface during the normal mining
routine.” Black Beauty Coal Co. , 34 FMSHRC 1733, 1735 (Aug. 2012), aff’d ,
762 F.3d 611 (7th Cir. 2014) (interpreting a similar standard applicable to
surface coal mines); see also Capitol Aggregates, Inc ., 4 FMSHRC 846,
847 (May 1982). The evidence at hearing, including Burn’s observations of the
tire tracks and his conversation with the loader operator, demonstrated that
the cited area was the primary means of access to the pile. While Bredfield
claimed that vehicles no longer traveled there, nothing had been done to
prevent access, such as posting signs or erecting barricades. I therefore find
that the area was still a roadway within the meaning of the standard. The
drop-off of 20 feet was “of sufficient grade or depth to cause a vehicle to
overturn.” Because no berm was provided at the drop-off, the standard was
violated. I agree with the inspector that the citation was the result of
moderate negligence, was unlikely to cause injury, and was not S&S, given
that the area was infrequently used and there were no tire tracks close to the
edge. A penalty of $484.00 is assessed as proposed by the Secretary.

Citation No. 8872972

Burns next inspected a CAT 980 H front-end loader. He
noticed a fire extinguisher on the loader and saw that the tag on the fire
extinguisher indicated that it had last been inspected in December 2014. A
photo of the tag was introduced as the Secretary’s Exhibit 3, page 3. Burns
issued a citation for a violation of 30 C.F.R. § 56.4201(a)(2), which requires
that

Firefighting
equipment shall be inspected according to the following schedules: … At least
once every twelve months, maintenance checks shall be made of mechanical parts,
the amount and condition of extinguishing agent and expellant, and the
condition of the hose, nozzle, and vessel to determine that the fire
extinguishers will operate effectively.

The
Secretary argues that the fire extinguisher should have been inspected in
December 2015, 12 months after the previous inspection.

Bredfield testified that the CAT 980 H has its own
automatic fire prevention system and does not require a fire extinguisher. LRock
argues that yearly inspections of the fire extinguisher were therefore not
required. However, the language of the standard does not limit the inspection requirement
only to mandatory fire extinguishers. Even if other fire extinguishing
equipment was available, a miner might rely on the available fire extinguisher
in an emergency. If the extinguisher had not been inspected and was not in
operable condition, it would present a hazard to miners.  

Because the fire extinguisher had not been inspected
within the past 12 months, a violation is proven. I uphold the inspector’s
finding of moderate negligence, since the mine had had violations of this
standard in the past. The violation was non-S&S and unlikely to cause
injury. A penalty of $145.00 is assessed as proposed.

Citation No. 8872973

Continuing his inspection of the CAT 980 H loader, Burns
asked the loader operator to pick up a typical load in the bucket and then test
the parking brake while on the crusher feed ramp. The brake failed to hold, and
the loader moved approximately 20 inches before the operator stopped it with
the service brake. Burns issued a citation for a violation of 30 C.F.R. § 56.14101(a)(2),
which requires that “If equipped on self-propelled equipment, parking brakes
shall be capable of holding the equipment with its typical load on the maximum
grade it reaches.”

Bredfield testified that past inspectors had not
tested the brake with gravel in the bucket. The operator had tested the brake
that morning without gravel and it had held. Bredfield also stated that it is
common practice to put the loader bucket down before applying the brake. However,
the standard states that the brake must hold the equipment “with its typical
load on the maximum grade it reaches.” 30 C.F.R. § 56.14101(a)(2). The bucket
would be lifted when the loader was carrying the load. I find that a violation
occurred. The violation was unlikely to cause injury and non-S&S because
there was still some resistance in the brake, and the loader moved slowly, only
a short distance. The negligence was moderate because the operator had tested
the brake that day. I assess a penalty of $216.00.

Citation No. 8872974

Burns next inspected a roadway on the south side of
the bank of the yard, where the stockpile is located. He estimated that the
roadway was 40 to 45 feet wide. It had a steep angle drop-off of approximately 10
feet, but there was no berm in place. Burns observed haul trucks using the area
to turn around and coming within 30 feet of the drop-off. The Secretary’s
Exhibit 5, page 4, shows a partially constructed berm, but the berm does not
extend to the end of the yard. Burns believed the berm had been removed as the
stockpile was loaded out.

Burns issued a citation for a violation of 30 C.F.R.
§ 56.9300(a), which requires that “Berms or guardrails shall be provided and
maintained on the banks of roadways where a drop-off exists of sufficient grade
or depth to cause a vehicle to overturn or endanger persons in equipment.” He
designated the violation as S&S because he observed multiple trucks close
to the edge, and therefore there was potential for a rollover accident. The
Secretary alleges high negligence because Bredfield, the plant manager, was in
the area, and because the partially constructed berm indicates that management
knew of the berm requirement.

Bredfield agreed that there was no berm in the cited
area, but testified that workers were in the process of constructing the berm
when Burns inspected the area. Bredfield also denied that there were trucks in
the area, producing overhead photographs showing no truck activity. Resp. Exs.
A & B. However, the photographs are undated and therefore of little
probative value. Further, Bredfield stated that the roadway was not 40 feet
wide as observed by the inspector, but rather 160 feet, leaving sufficient room
for the trucks to maneuver in the absence of a berm. On cross-examination,
Bredfield was asked how long the stockpile had been in place prior to the
inspection, but his responses were evasive. Bredfield stated that at the time
of the inspection, miners were in the process of cleaning up the area and
loading out the berm in order to terminate a project. This testimony conflicts
with Bredfield’s earlier statement that the berm was under construction. Accordingly,
I do not credit his testimony.

Based on the testimony of the inspector, I find that
the area was frequently travelled and had a drop-off, and a berm was therefore
required. The Secretary has proven a violation. In view of Bredfield’s knowledge
of the requirement, the negligence is high as assessed. I also find that the
violation was significant and substantial. Applying the Mathies factors,
the Secretary has proven a violation of a standard as discussed. The cited
standard is intended to prevent an over-travelling accident. Here, such an
accident was reasonably likely to occur, given that there was frequent traffic
in the area and tire tracks relatively close to the drop-off. Such an accident
would be reasonably likely to result in serious injury to the driver. The
Secretary proposed a penalty of $7,964.00 which I find appropriate in this
circumstance.

Citation No. 8872975

On the second day of the inspection, Burns examined
a mobile excavator that was being operated by Bredfield. Burns observed that one
of the front mirrors on the excavator was broken, and another was missing. Burns
stated that the mirrors would aid the driver in safe operation of the machine
because they would allow him to see out the back, left or right side.

Bredfield explained that the machine had been brought
in a day or two prior to the inspection to clear material located on a steep
edge. The excavator was normally stored at a shop offsite and belonged to
LRock’s rental division. Bredfield stated that the mirrors were useless and got
in the way of entering and operating the excavator. The machine had a cab that
could rotate 360 degrees and thus there was no need to operate it in reverse. He
stated that no other vehicles would come around the excavator while it was
operating.

The Secretary alleges a violation of 30 C.F.R. §
56.14100(b), which provides that “Defects on any equipment, machinery, and
tools that affect safety shall be corrected in a timely manner to prevent the
creation of a hazard to persons.” I find that the mirrors affect the safety of
the excavator. While I credit Bredfield’s testimony that the machine is
typically operated in forward motion, I also credit Burn’s statement that the
machine could be operated in reverse. Burns also stated that the mirrors could
be used to check a blind spot, which would be aid in safely operating the machine
in forward motion. While the Secretary did not address the “timely” element of
the standard, Bredfield was operating the machine at the time and should have
discovered and corrected the broken mirrors in a pre-operational check. I agree
with the Secretary that the violation was the result of high negligence, given
that Bredfield, a supervisor, was aware of the condition. The violation was
unlikely to cause injury and was not S&S, since the excavator was operated
primarily with the cab facing forwards. The Secretary’s proposed penalty of
$722.00 is affirmed.

Citation No. 8872977

Burns next inspected a storage area, where he
observed a seven-inch angle grinder located on the bottom shelf under some
other tools. The disk on the grinder did not have a guard. See Sec’y Ex.
13, p. 3. The edges of the disk showed some wear, from which Burns inferred
that the grinder had been used. He also inferred that the grinder had been in
that condition for some time, based on the fact that there were other tools
piled on top of it. Burns explained that the disk on the grinder rotates at
high speed and the miner operating the tool would have his hand within eight
and a half inches of the disk.

Bredfield acknowledged that a guard was necessary
for safe operation of the grinder, but stated that the grinder was not used
except for spare parts. He noted that the grinder disk had been put on upside
down, and stated that this would be a signal to miners that the grinder was not
in service. He explained that the mine has many of the same grinders and this
one was buried under tools because it had not been used for some time.

Burns cited the mine for a violation of 30 C.F.R. § 56.14100(b),
which provides that “Defects on any equipment, machinery, and tools that affect
safety shall be corrected in a timely manner to prevent the creation of a
hazard to persons.” The Secretary alleges that the violation was the result of
low negligence and was S&S.

LRock argues that the standard should not apply
because the grinder had been taken out of service. Section (c) of the same
standard provides that defective equipment may be taken out of service to
prevent hazardous use, including by “marking the defective items … to prohibit
further use until the defects are corrected.” 30 C.F.R. § 56.14100(c). LRock
argues that the upside down disc on the grinder effectively marked it as out of
service. I reject this argument. A miner could easily turn the disc over and
use the grinder or use it without noticing that the disc was upside down.

I find that the Secretary has proven a violation. The
absence of a guard on the grinder exposed the user to the sharp spinning edge
of the disc, which was close to the trigger and thus would be close to the
user’s hand. The condition had most likely been present for some time, given
that the grinder was buried under other tools. Because the grinder was
difficult to see buried under the tools, I find that the violation was the result
of low negligence as alleged.

The Secretary alleges that the violation was
S&S, and I agree. The Secretary has proven a violation of a mandatory
standard, satisfying the first Mathies element. The standard at issue
guards against the hazard of a miner using a tool with a safety defect. I find
that the hazard was reasonably likely to occur, because the grinder was not
tagged out and was available for use. A miner could easily have flipped the
disk on the grinder over and used it without the guard. The second Mathies
element is proven. A miner using the grinder without the guard would be
reasonably likely to incur an injury. The miner’s hand would come within inches
of the disk, which is sharp and would be rotating at high speed. The resulting
injury would most likely lead to lost workdays or be permanently disabling. The
third and fourth Mathies elements are satisfied, and the violation is
S&S.  The Secretary proposed a penalty of $324.00 which is assessed.

Citation No. 8872978

Burns next examined a sand screw used to dewater
sand during processing. The screw was covered by a screen, and a working deck
surrounded the screen. Burns observed that there was a gap between the screen
and the working deck, leaving approximately 10 inches where the screw was
exposed. See Sec’y Ex. 3, p. 4. The working deck was approximately 10
feet above ground and was accessible via a vertical ladder. Burns explained
that miners would access the area to conduct fluid level checks or to clean
material off of the deck. He was concerned that a miner could reach or fall
into the area and become entangled with the screw.

Burns testified that an entanglement accident with
the screw fins could cause a fatal injury. While Bredfield stated that the
screw moves slowly, he did not dispute that an injury could occur if someone
were to come into contact with it.

Burns cited the mine for a violation of 30 C.F.R. §
56.14107(a), which provides that “Moving machine parts shall be guarded to
protect persons from contacting gears, sprockets, chains, drive, head, tail,
and take-up pulleys, flywheels, couplings, shafts, fan blades, and similar
moving parts that can cause injury.” I find that the screw fins were “moving
machine parts” within the meaning of the standard because they were capable of
causing injury.

LRock argues that the guarding recommended by the
inspector was not necessary because the mine has a lock-out/tag-out policy that
would require the screw to be de-energized before anyone performed maintenance
on it. However, the Commission has found that guarding standards should be
interpreted to account for “all relevant exposure and injury variables”
including “the vagaries of human contact.” Thompson Bros. Coal Co. , 6
FMSHRC 2094, 2097 (Sept. 1984). Consistent with this, Commission judges have
interpreted guarding standards to require that guarding be adequate to prevent
injury in the event that an employee carelessly disregards a lock-out/tag-out
policy. See, e.g., Climax Molybdenum Co ., 38 FMSHRC 2453, 2460 (Sept.
2016) (ALJ); Dix River Stone Inc ., 29 FMSHRC 186, 203 (Mar. 2007) (ALJ);
Calco Inc ., 15 FMSHRC 480, 484 (Mar. 1993) (ALJ). LRock’s
lock-out/tag-out policy is no defense to a guarding violation and therefore I
find that the Secretary has proven a violation.

The Secretary alleges that the violation was S&S,
and I affirm that finding. I have found that a violation of a mandatory
standard occurred, satisfying the first element of the Mathies test. Regarding
the second element, the question is whether it was reasonably likely that the
inadequate guarding on the screw would lead to a miner coming into contact with
the moving screw. See Newtown Energy, Inc. , 38 FMSHRC 2033, 2038 (Aug.
2016). Based on the close proximity of the walkway to the exposed screw, I find
that such an accident was reasonably likely to occur. The inspector testified
that such an accident would lead to a fatal injury, and LRock produced no
evidence to the contrary. I thus find that the hazard was reasonably likely to
lead to a fatal injury, satisfying the third and fourth Mathies elements.
Because the condition had been present for three years and had been examined by
other inspectors, I find that the negligence was low. The Secretary’s proposed
penalty of $1,078.00 is assessed.

Citation No. 8872979

Burns next inspected a concrete rock screw that is
used to clean rock before it is sent to the conveyor belt. The screw had a
water manifold system mounted on one side that prevented contact with the auger
from that side. However, Burns noted that there were gaps in the guarding on
the top and side of the screw. The screw paddles were within 13 to 20 inches
from the unguarded spots. Burns stated that miners would sometimes work in the
area to adjust the valves on the water manifold. He believed it was possible for
a miner to be pulled into the screw, causing a fatal injury. He cited the mine
for a violation of 30 C.F.R. § 56.14107(a), the guarding standard discussed
above with regard to Citation No. 8872978. The Secretary produced photographs
of the screw, but it is difficult to see the moving machine parts in the
photographs. Sec’y Ex. 7, p. 3-4.

Bredfield testified that miners do not work in the
area because the valves on the manifold are never adjusted. He stated that the
manifold was a modification he had added to the screw, and that the manifold
provides more guarding on the screw than would be present in other plants. He
believed that in order for someone to come in contact with the auger, the
person would have to climb onto the manifold. The screw had been at the plant
for three years at the time of the inspection, and no other inspectors had
found a problem.

I credit the inspector’s finding that the moving
machine parts were within reach and that additional guarding was necessary. It
would be possible for a miner to be pulled into the screw and receive a fatal
injury. However, because the plastic tub above the manifold provided partial
guarding, the violation was unlikely to cause injury. The negligence was low,
given that previous inspectors had accepted the guarding. I assess a penalty of
$216.00 as proposed by the Secretary.

Citation No. 8872980

Burns also inspected a portable rolling pressure
valve. The machine had been brought in to the mine three weeks earlier for use
on a specific project. Burns observed that there were two openings on the walkway
on the unit, one 20 inches wide and a second 24 inches wide. The openings were
located 52 and 67 inches above ground, respectively, and provided access to the
unit from the ground. Burns believed there should have been chains across the
openings, as there were on other equipment in the mine. He noted that injury
was unlikely because of the side railings by the openings.

Burns cited the mine for a violation of 30 C.F.R. §
56.11012, which requires that “Openings above, below, or near travelways
through which persons or materials may fall shall be protected by railings,
barriers, or covers. Where it is impractical to install such protective
devices, adequate warning signals shall be installed.”

LRock argues that the chains detract from safety,
because a miner entering the unit would be forced to let go of the hand rails
in order to lift the chain. The standard provides that where it is impractical
to install a chain, the operator may instead install warning signals. However,
the mine has not provided evidence that it installed warning signals. In any
event, I do not find that the chains were impractical, since the inspector
observed similar chains on other equipment at the mine.

I find that the Secretary has proven a violation of
the standard. There was a danger of a miner falling through the openings from
the travelway, and a barrier was therefore necessary. I agree that injury was
unlikely, because there were handrails in the area to provide stability. The negligence
is moderate because management had provided chains on other equipment. I assess
a penalty of $216.00

Citation No. 8872982

Burns next observed a lube truck that was used to
transport tools around the site for maintenance. He observed a Miller 250
welder on the truck and determined that the terminals on the welder were not
adequately guarded. The Secretary’s Exhibit 9, page 3, shows that metal is
exposed on the terminals. The welder is gas-powered, and the terminals are used
to connect to the welding leads. Burns
testified that if a miner were to contact the terminals with something metal,
he would be shocked. He observed that while the welder was high on the truck,
it was next to a handrail. To terminate the violation, the operator installed
rubber guards around the terminals.

Burns cited the mine for a violation of 30 C.F.R. §
56.12023, which provides that “Electrical connections and resistor grids that
are difficult or impractical to insulate shall be guarded, unless protection is
provided by location.”

Bredfield stated that the welder was equipped with
the factory insulation. However, Burns believed that the cited part needed to
be insulated because there was metal exposed. LRock also argues that the welder
was located eight feet off the ground, and thus “protection is provided by
location.” However, because there was a handrail next to the welder, I find
that contact with the part was possible. I find that the Secretary has proven a
violation of the standard. Because of the welder’s location high off the
ground, I find that the violation was unlikely to cause injury. I affirm the moderate
negligence designation because the welder was used regularly. I assess the
Secretary’s proposed penalty of $145.00.

Citation No. 8872983

Burns also observed that there was no protective
cover over the end of the positive electrode on the welder. Without the
protective cover, Burns stated that there would be “arcing,” creating a
potential for shock. He described seeing “burrs” on exposed metal, which
indicated to him that arcing had occurred in previous uses of the welder. He
was unsure of the voltage on the welder but estimated that it was at least 120
volts.

Burns issued a citation for a violation of 30 C.F.R.
§ 56.14100(b), which provides that “Defects on any equipment, machinery, and
tools that affect safety shall be corrected in a timely manner to prevent the
creation of a hazard to persons.” The Secretary alleges that the violation was
the result of moderate negligence and was S&S.

Bredfield acknowledged that the protective cover was
missing, saying that the covers were flimsy and broke easily. However, he did
not believe that the missing guard created a safety hazard. He stated that
arcing and shock hazards are normal parts of welding and that miners wear
gloves as protection. He believed that the important guards were where the
miner’s hands would be, and those were present. 

I affirm the citation as issued. The missing cover
was a “defect[ ] on any equipment … that affect[s] safety” because it created
“arcing,” lessened the miner’s control of the welder, and increased the risk of
shock. Burn’s observation of burrs on exposed metal indicates that the
condition had existed for some time, and therefore was not “corrected in a
timely manner.”  I find that the violation was the result of moderate
negligence, because it had existed for some time and the welder was available
for use.

Applying the Commission’s Mathies test, I
also find that the violation was S&S. A violation of a mandatory standard
occurred. The hazard of a miner using the welder in its defective condition was
reasonably likely to occur because the welder was available for use, and Burns
saw evidence of arcing. Regarding the third and fourth steps, a miner using the
welder would be reasonably likely to be shocked, and a shock to a miner would
likely result in burns or other injuries of a reasonably serious nature. I
assess the Secretary’s proposed penalty of $722.00. 

Citation No. 8872984

In addition to the welder, the lube truck also carried
an angle grinder. Burns noticed that there was a split in the outer jacket of
the conductor feeding the grinder. The split was approximately one and a half
inches long and one quarter inch wide and there was bare copper exposed through
the split. Burns testified that the split could cause a miner to be
electrocuted if he put his hand on the plug to plug in the grinder.

Bredfield admitted that the outer jacket was
damaged, speculating that someone may have pinched the cord in the heavy door
of the lube truck. He stated that no one was aware of the defect and that no
one would have tried to use the grinder in that condition.

The Secretary alleges a violation of 30 C.F.R. §
56.12004, which provides in relevant part that “Electrical conductors exposed to
mechanical damage shall be protected.” A “conductor” is defined as “a material,
usually in the form of a wire, cable, or bus bar, capable of carrying an
electric current.” 30 C.F.R. § 56.2. Other Commission ALJs to address this
standard have found that it is violated when “exposed cable or wiring that is
capable of carrying an electrical current, thus creating a shock hazard, lacks
an outer protective jacket or structure of some sort.” Recon Refractory
& Constr ., 36 FMSHRC 2265, 2274 (Aug. 2014) (ALJ); see also Northshore
Mining Co ., 35 FMSHRC 1889, 1893 (June 2013) (ALJ); Baker Rock Crushing
Co. , 32 FMSHRC 968, 977 (Aug. 2010) (ALJ).

I find that the Secretary has proven a violation of
the standard. The cited cord was capable of carrying an electric current and
had exposed wires that were unprotected. The Secretary alleges that the
violation was S&S and the result of moderate negligence. I affirm the
negligence designation, but find that the violation was not S&S. Bredfield
testified that the grinder had not been used in its current condition. At the
time of the inspection, the tool was stored in the truck and not currently in
use. Bredfield stated that a miner would have noticed the split on the cord as
soon as he took the machine out and would not have tried to use it in that
condition. The Secretary produced no evidence to the contrary. I thus find that
the hazard of a miner contacting energized wires was unlikely to occur. cf.
Baker Rock , 32 FMSHRC at 977-78 (finding that no violation of § 56.12004
occurred because miners were unlikely to connect a damaged cable to power
without first noticing the exposed inner conductors). The second element of the
Mathies test is therefore not proven.  The Secretary proposed a penalty
of $2,398.00, but because the violation was not significant and substantial, I
assess a penalty of $300.00.

Citation No. 8872985

Burns continued the inspection of the mine on June
7, 2016. He inspected a roadway in the southeast section of the yard near a
pond. Burns noticed that there was a drop-off of approximately 10 to 15 feet,
but there were no berms on approximately 300 feet of the road. Burns observed a
Volvo haul truck in the area, which he learned had been operated in the area
the weekend prior to the inspection. See Sec’y Ex. 17, p. 5. He also
observed tracks on the road, which he believed were from haulage vehicles and
mobile excavators. See Sec’y Ex. 17, p. 8. He measured that the tracks
were between five inches and five feet from the drop-off. The tire tracks so
close to the water concerned Burns because a vehicle could over-travel into the
water. He predicted that this type of accident could cause the vehicle’s driver
to drown.

Burns issued this citation for a violation of 30
C.F.R. § 56.9300(a), which requires that “Berms or guardrails shall be provided
and maintained on the banks of roadways where a drop-off exists of sufficient
grade or depth to cause a vehicle to overturn or endanger persons in
equipment.”

LRock makes several arguments disputing the berm
requirements. First, Bredfield testified at hearing that the roadway was not on
mine property and so is outside MSHA jurisdiction. However, Burns testified
that the area was on mine property. I accept the inspector’s finding on this
issue and find that the roadway was subject to MSHA jurisdiction. Bredfield also
stated that the unbermed area shown in Exhibit 17, page 11, had only a 20-inch
drop-off. Bredfield argued that berms are only required for drop-offs greater
than mid-axle height of the mine’s tallest wheeled vehicles, and that the Volvo
truck used in the area had a mid-axle height of 31 inches. In fact, the
standard requires that the “ berm or guardrail shall be at least mid-axle
height.” 30 C.F.R. § 56.9300(b) (emphasis added). A berm is required wherever
there is a drop-off “of sufficient grade or depth to cause a vehicle to
overturn or endanger persons in equipment.” Burns found that there was a
rollover hazard even in some areas with a small drop-off, and I accept his
findings.  

I find that the Secretary has proven a violation of
the standard. The cited roadway had a steep drop-off of 10 to 15 feet in some
places creating a rollover hazard. Berms were therefore required. However, I
assess the negligence as moderate rather than high as alleged, because
Bredfield testified that his understanding of the height requirement was
different than that of the inspector for this area of the mine. I also find
that the violation was significant and substantial as alleged by the Secretary.
The Secretary has proven that a violation occurred, which satisfies the first
step in the Mathies test. The relevant hazard is that of a rollover
accident from over-traveling, and I find that such an accident was reasonably
likely to occur. While Bredfield stated that the road was used only once per
year by excavating vehicles, I do not credit his statement, given that Burns
observed a haul truck and vehicle tracks in the area. Moreover, the area
lacking berms was large, creating multiple sites for a potential accident. The
second element of the Mathies test is satisfied. A rollover accident in
this area would be likely to result in a crushing or drowning injury,
satisfying the third and fourth elements. I assess a penalty of $3,000.00, as I
have found that the negligence was less than that assessed by the Secretary.

Citation No. 8872986

During his inspection, Burns asked Bredfield for the results
of the mine’s grounding systems tests. He learned that while Bredfield had
completed a test of the equipment grounding conductors, he had not tested the
grounding electrodes or the grounding electrode conductors.  The mine had a
system of ground rods that Burns believed should have been tested. However, Burns
did not encounter any defects in the system. Bredfield did not believe it was
necessary to test the ground rods because the mine already has more rods than
are required.

Burns cited LRock for violating 30 C.F.R. § 56.12028, which
requires that “Continuity and resistance of grounding systems shall be tested
immediately after installation, repair, and modification; and annually
thereafter. A record of the resistance measured during the most recent tests
shall be made available on a request by the Secretary or his duly authorized
representative.”

The Secretary has interpreted the term “grounding systems” to
include three components, each of which must be tested: equipment grounding
conductors, grounding electrode conductors, and grounding electrodes. IV MSHA,
U.S. Dep’t of Labor, Program Policy Manual , Part 21, at 44–45 (2003). The
Secretary’s interpretation is reasonable and is therefore entitled to
deference. See Tilden Mining Co. , 36 FMSHRC 1965, 1967; Wolf
Run Mining Co. , 32 FMSHRC 1669, 1678-79 (Dec. 2010) (citing Energy West
Mining Co. v. FMSHRC , 40 F.3d 457, 463 (D.C. Cir. 1994)). I find that the Secretary
has proven a violation. Tests of all three components described by the
Secretary were required, but only the equipment grounding conductors were
tested. I also uphold the inspector’s finding of low negligence because
Bredfield was unaware that the two other tests were required, and he testified
that they would conduct those tests from now on. I find that the violation was
non-S&S and unlikely to cause injury, because the inspector testified that
during his inspection he did not see any electrical hazards that could lead to
a shock. I assess a penalty of $114.00.

Citation No. 8872987

Burns issued the next three citations for violations
regarding a Ford F7000 fuel truck at the mine. Burns observed that the truck’s tank
did not have a label indicating that it contained diesel fuel. He was concerned
that a miner who was not aware that the tank held diesel fuel could
accidentally come into contact with the fuel. Burns testified that diesel fuel
can be hazardous if the fuel touches a person’s eyes or skin. However, all the
miners he spoke to knew that the tank contained diesel fuel.  

LRock disputes that the tank was not labeled. Bredfield
explained that there was a placard on the tank with the label “1203,” which he stated
would be recognizable to any miner or emergency personnel as a sign for diesel
fuel. Burns disagreed, stating that the 1203 placard on the tank did not mean
anything to him. Bredfield stated that the truck had been at four different
rock pits with only the 1203 placard on the tank, and there had been no
previous questions as to the tank’s contents.

Burns issued a citation for a violation of 30 C.F.R.
§ 47.41, which requires that “The operator must ensure that each container of a
hazardous chemical has a label. If a container is tagged or marked with the
appropriate information, it is labeled.” A “hazardous chemical” is defined in
the regulations as “Any chemical that can present a physical or health hazard.”
30 C.F.R. § 47.11. A “label” is defined as “Any written, printed, or graphic material
displayed on or affixed to a container to identify its contents and convey
other relevant information.” Id .

I reject LRock’s argument that the 1203 placard was
an adequate label for the tank. Burns, an inspector with over nine years of
experience, was unfamiliar with the label. The miners onsite also made no
reference to the placard when Burns was explaining the citation to them. I thus
find that the placard did not “convey the relevant information” as required by
the standard. The violation was the result of moderate negligence because
management had attempted to comply by using the “1203” placard, but the label
was not clear. This violation was non-S&S and unlikely to cause injury
because all of the miners the inspector talked to knew the tank contained
diesel fuel. A penalty of $145.00 is assessed as proposed.

Citation No. 8872988

Continuing
his inspection of the fuel truck, Burns asked the operator to back up the truck
to test the back-up alarm. He testified that he could not hear an alarm when
the operator backed up the fuel truck. The miner on site informed Burns that
the fuel truck was primarily stationary, and that the only time it moved was to
refuel the roll crusher machine. The crusher was located roughly 200 feet from
the truck. Burns estimated that the crusher would need to be refueled daily,
but workers at the inspection told him it had been at least two weeks since
anyone had moved the truck. The Secretary’s photograph of the truck shows that
it had a restricted rear view. Sec’y Ex. 14 pg. 3.

Bredfield
testified at hearing that the truck was stationary 99 percent of the time. Miners
frequently used pickup trucks to fuel the crusher instead of the fuel truck. If
the truck did go through the pit, it would drive very slowly. He stated that
the truck never had a back-up alarm installed because other inspectors told the
company that it was not necessary so long as they used a spotter when moving
the truck.

Burns cited the mine for a violation of 30 C.F.R. §
56.14132(a), which requires that “manually-operated horns or other audible
warning devices provided on self-propelled mobile equipment as a safety feature
shall be maintained in functional condition.” This standard applies to audible
warning devices already existing on vehicles, but does not require the
installation of a horn if one is not present. See Nelson Bros.
Quarries, Inc. , 21 FMSHRC 1100, 1109 (Oct. 1999) (ALJ). However, a back-up
alarm or similar safety measure is required by § 56.14132(b), which applies
“when the operator has an obstructed view to the rear.” 30 C.F.R. §
56.14132(b). If no alarm is present, the operator may also comply with §
56.14132(b) by using “An observer to signal when it is safe to back up.” Id .

Because there was no alarm installed on the truck, I
find that the Secretary should have cited the truck under § 56.14132(b) instead
of § 56.14132(a). I therefore amend the citation to conform to the evidence, as
is permitted under Federal Rule of Civil Procedure 15(b)(2). The amendment is
appropriate because both parties discussed the use of spotters at hearing,
indicating that they understood that a violation of § 56.14132(b) was being
litigated. See Faith Coal Co. , 19 FMSHRC 1357, 1361 (Aug. 1997).

I find that the Secretary has proven a violation of
§ 56.14132(b). The truck had an obstructed rear view and no working back-up
alarm. While Bredfield mentioned the use of spotters at hearing, no one told
Burns that spotters were used at the time of the inspection. I conclude that
spotters were not used consistently enough to satisfy the standard. The
Secretary alleges that the violation was unlikely to cause injury and was not
S&S. Because the truck was moved only occasionally, I agree that injury was
unlikely. The negligence was moderate because the operator had alarms on other
vehicles and thus should have been aware of the requirement. The Secretary
proposed a penalty of $216.00, which is assessed.

Citation No. 8872989

Burns next tested the brake lights on the same fuel
truck. He asked the operator to apply the service brake pedal, and observed
that the brake lights did not come on. The Secretary’s Exhibit 16, page 3,
shows the brake lights unlit. As previously mentioned, this truck was mostly
stationary, but the operator did move it to refuel the crusher, which had been
at the mine for approximately two weeks. Burns also testified that the operator
had not run the truck in two or three weeks. The inspector believed based on
the frequency of use of the truck that the brake lights had not been fixed in a
timely manner.

Burns issued a citation for a violation of 30 C.F.R.
§ 56.14100(b), which requires that “Defects on any equipment, machinery, and
tools that affect safety shall be corrected in a timely manner to prevent the
creation of a hazard to persons.” The Secretary alleges that the violation was
non-S&S and that it resulted from moderate negligence.

With respect to the standard at issue, the
Commission has held that the timeliness of a correction depends on when the
defect occurred and when the operator knew or should have known about the
defect. Lopke Quarries, Inc. , 23 FMSHRC 705, 715 (July 2001). In Lopke ,
the Commission found that a violation of § 56.14100(b) had not been proven
because the Secretary had not provided any evidence as to when the defect on the
cited equipment arose. Id .  

Here, Burns assumed that LRock had not repaired the
truck’s brake lights in a timely manner based on how often the crushing machine
needed to be refueled. He believed the machine would need to be fueled daily,
but was told that the fuel truck had not been moved in two or three weeks. I am
not convinced that these facts prove that the brake lights had been broken for
any length of time, or that the operator should have known of the defect. I
find that the Secretary has failed to prove the timeliness element of the
standard, and therefore vacate the citation.

Citation No. 8872990

Finally, Burns concluded based on the large number
of violations he encountered at the mine that adequate inspections were not
being conducted. He issued a citation for a violation of 30 C.F.R. §
56.18002(a), which provides that “A competent person designated by the operator
shall examine each working place at least once each shift for conditions which
may adversely affect safety or health. The operator shall promptly initiate
appropriate action to correct such conditions.” The Commission has held that in
order to comply with the standard, a workplace examination “must be adequate in
the sense that it identifies conditions which may adversely affect safety and
health that a reasonably prudent competent examiner would recognize.” Sunbelt
Rentals, Inc ., 38 FMSHRC 1619, 1627 (July 2016).

I find that the Secretary has proven a violation. Burns
specifically noted the citations for missing berms, missing guards, and damaged
electrical conductors. A reasonably prudent competent examiner would have
detected those violations in an inspection. Further, I find that the violation
was S&S. The failure to identify numerous hazardous conditions, especially
the missing berms and the guards on the welder, was likely to result in a miner
working in unsafe conditions, and this would be likely to result in an accident.
Such an accident would be reasonably likely to cause a serious injury, such as
a crushing injury or electrocution in the case of the berms and electrical
guarding. The Mathies elements are satisfied. However, I do not find the
Secretary has presented sufficient evidence to demonstrate that the negligence
was high. While Bredfield may have been the person responsible for conducting
the examinations, there is no evidence in the record to support that
supposition. It is not clear if he is the only management employee at the mine,
or if he designated another individual to conduct an examination. Therefore, I
find the negligence to be moderate and assess a penalty of $3,500.00.

Citation No. 8881854

The final citation was issued by Inspector Brent
Oxier during a hazard complaint inspection. Oxier observed a miner standing on
top of the shaker platform removing rock from the screens. The miner was not
wearing fall protection. Oxier measured that the platform was 11 feet, 9 inches
above ground. See Sec’y Ex. 1, p. 7. A walkway below the cited area had
a handrail, but the miner was working above the handrail, and the walkway was
narrow. See Sec’y Ex. 1, p. 5. Oxier believed the miner was in danger of
falling, because his back was close to the screen wall edge and he was bent
over striking the screen with a hammer to dislodge a rock. If the miner were to
step back, he could fall backwards to the walkway below or to the ground. Oxier
believed that the miner’s actions were common practice at the mine, because the
miner was aware that Oxier was on site for an inspection. Miners told Oxier
that they removed rock from the screens twice per week.

Bredfield believed that the handrail surrounding the
screen provided sufficient protection. He stated that the walkway with the
handrail was wider than Oxier believed, 22 inches instead of 9 inches. Bredfield
also stated that a miner working to dislodge rocks from the screen would be
working on his hands and knees and so not in danger of falling, and a 12 inch
sideboard around the screen would prevent anyone from falling.

Oxier cited the mine for a violation of 30 C.F.R. §
56.15005, which provides that “Safety belts and lines shall be worn when
persons work where there is danger of falling; a second person shall tend the
lifeline when bins, tanks, or other dangerous areas are entered.” I find that
the Secretary has proven a violation. Because the miners were working to
dislodge rocks on a platform with no hand rail, there was a danger of falling. There
is no dispute that the miner observed was not wearing fall protection. Because a
12 inch barrier was present, I find that the violation was the result of
moderate negligence.

The Secretary alleges that the violation was
S&S. Applying the Mathies criteria, the Secretary has proven a
violation of a mandatory standard. I find that the hazard of a miner falling
from the top of the screen was reasonably likely to occur, given that the work
was performed several times per month, and the miner was likely to be in an
unstable position while working to dislodge rocks from the screen. While
Bredfield stated that the miner would be on his hands and knees, Oxier observed
someone standing. The second Mathies element is satisfied. Oxier
believed that a miner would be more likely to fall to the catwalk below than to
the ground, but he believed that such a fall would likely cause permanently
disabling injury. I credit these findings and find that the third and fourth Mathies
elements are satisfied. The violation is S&S. The Secretary proposed a
penalty of $1,078.00, which I find appropriate.

III. 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 duty of proposing penalties is delegated
to the Secretary. 30 U.S.C. §§ 815(a), 820(a). The Secretary calculates
penalties using the penalty regulations set forth in 30 C.F.R. § 100.3 or
following the guidelines for special assessments in 30 C.F.R. § 100.5. When an
operator notifies the Secretary that it intends to challenge a penalty, the
Secretary then petitions the Commission to assess the penalty. 29 C.F.R. §
2700.28. Commission Judges are not bound by the Secretary’s penalty regulations
or his special assessments. Am. Coal Co ., 38 FMSHRC 1987, 1990 (Aug.
2016). Rather, the Act requires that in assessing civil monetary penalties, the
judge must consider six statutory penalty criteria: the operator’s history of
violations, its size, whether the operator was negligent, the effect on the
operator’s ability to continue in business, the gravity of the violation, and
whether the violation was abated in good faith. 30 U.S.C. § 820(i). In keeping
with this statutory requirement, the Commission has held that judges must make
findings of fact on the statutory penalty criteria. Sellersburg Stone Co .,
5 FMSHRC 287, 292 (Mar. 1983), aff'd , 736 F.2d 1147, 1152 (7th Cir.
1984). Once these findings have been made, a judge’s penalty assessment for a
particular violation is an exercise of discretion “bounded by proper
consideration of the statutory criteria and the deterrent purposes underlying
the Act’s penalty scheme.” Id . at 294; see also Cantera Green , 22
FMSHRC 616, 620 (May 2000). The Commission requires that its judges explain any
substantial divergence from the penalty proposed by the Secretary. Am. Coal ,
38 FMSHRC at 1990. However, the judge’s assessment must be de novo based upon
her review of the record, and the Secretary’s proposal should not be used as a
starting point or baseline. Id .

With regard to the criterion of ability to continue
in business, the Commission has held that the burden rests on the operator to
produce evidence that the proposed penalty will affect its ability to continue
in business. Mize Granite Quarries, Inc ., 36 FMSHRC 2801, 2804 (Nov.
2014); Broken Hill Mining , 19 FMSHRC 673, 677-78 (Apr. 1997). In the
absence of such evidence, it is presumed that no such adverse effect would
occur. Mize , 36 FMSRHC at 2804; Sellersburg , 5 FMSHRC at 294. Thus,
the judge may only adjust a penalty based on an operator’s inability to pay when
there is evidence in the record relevant to that point. Mize , 36 FMSHRC
at 2804.

The
history of assessed violations has been admitted into evidence and shows 16
violations in the 15-month period prior to the inspection. This includes two
citations for missing berms or guardrails, two for inadequate guarding on
moving machine parts, one for an exposed electrical conductor, and three for
failure to inspect a fire extinguisher. The parties agree that the citations in
this docket were abated in good faith, and the mine has raised no defense of
ability to pay. LRock is a small operator. The negligence and the gravity have
been discussed above with respect to each citation.

Based
on these factors, I assess the penalties as follows:

Citation
No.

Originally
Proposed Penalty

Penalty
Assessed

Modification

Docket
No. WEST 2016-0705

8872971

$484.00

$484.00

None.

8872972

$145.00

$145.00

None.

8872973

$216.00

$216.00

None.

8872974

$7,964.00

$7,964.00

None.

8872975

$722.00

$722.00

None.

8872977

$324.00

$324.00

None.

8872978

$1,078.00

$1,078.00

None.

8872979

$216.00

$216.00

None.

8872980

$216.00

$216.00

None.

8872982

$145.00

$145.00

None.

8872983

$722.00

$722.00

None.

8872984

$2,398.00

$300.00

Remove
S&S designation.

8872985

$7,964.00

$3,000.00

Modify
negligence from high to moderate.

8872986

$114.00

$114.00

None.

8872987

$145.00

$145.00

None.

8872988

$216.00

$216.00

Modify
citation, no penalty change

8872989

$145.00

$0.00

Vacate.

8872990

$7,964.00

$3,500.00

Modify
negligence from high to moderate.

8881854

$1,078.00

$1,078.00

None.

TOTAL

$32,256.00

$20,585.00

IV. ORDER

Respondent
is hereby ORDERED to pay the Secretary of Labor the sum of $20,585.00
within 30 days of the date of this decision.

/s/
Margaret A. Miller

Margaret A.
Miller

Administrative
Law Judge

Distribution: (U.S. First Class Certified Mail)

Daniel Brechbuhl, Office of the Solicitor, U.S.
Department of Labor, 1244 Speer Blvd, Suite 216, Denver, CO 80204

John Bredfield, LRock Industries, 451 Mandy Rd,
Toledo, WA 98591

[1] . Section (d) of
the same standard permits compliance on infrequently used roadways by providing
locked gates and specific warning signs. LRock did not provide evidence of any
barriers or signs in the area.