Vinnell Mining & Minerals

Plain-English summary

Vinnell Mining and Minerals faced 13 alleged violations at its silica mine across two dockets. The parties settled nine citations at the originally proposed penalties, and Judge Michael A. Lasher, Jr. resolved the remaining four by deleting their significant-and-substantial designations and setting penalties based on the conditions and the plant's nonoperating status. The operator was ordered to pay $619 total. All 13 citations were affirmed, with four modified to remove the significant-and-substantial designation.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.12032, 56.9007, and 56.14001
• Outcome: Nine citations were affirmed under the settlement, and four were modified and affirmed, for $619 total.
• Key point: Penalty and gravity findings accounted for the actual operating conditions, the remoteness of some hazards, and the operator's evidence about abatement and supervision.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. VINNELL MINING
DDATE:
19870608
TTEXT:

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           Federal Mine Safety and Health Review Commission
                 Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 85-152-M
PETITIONER A.C. No. 04-03008-05509

           v.                         Oro Grande

VINNELL MINING & MINERALS Docket No. WEST 86-157-M
CORPORATION, A.C. No. 04-03008-05510
RESPONDENT
Oro Grande Silica Mine

                                  DECISION

Appearances: Leroy Smith, Esq., Office of the Solicitor,
U.S. Department of Labor, Los Angeles, California,
for Petitioner; Mr. Don L. McRae, Vice President,
Vinnell Mining & Minerals Corporation, El Monte,
California, pro se.

Before: Judge Lasher

 These proceedings were initiated by the filing of petitions

for assessment of a civil penalty by the Secretary of Labor
pursuant to Section 110(a) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. Section 820(a)(1977). The Secretary seeks
assessment of penalties for a total of 13 alleged violations
involved in the two dockets.

 After the hearing in Victorville, California on April 8 and

9, 1987, the parties reached a settlement, which is here
approved, involving 9 of the 13 alleged violations. Pursuant
thereto, Respondent agrees to pay the full amount of Petitioner's
initially proposed penalties, to wit:

            Citation No.                     Penalty

            2671481                    $ 20.00
            2671484                      20.00
            2671485                      20.00
            2671486                      20.00
            2671488                      20.00
            2364698 (Docket 85-152-M 1) 119.00
            2671482                      91.00
            2671487                      91.00
            2671489                      68.00

This Citation is the only one involved in Docket WEST
85-152-M. The remaining 12 Citations are contained in WEST
86-157-M.

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With respect to five of these Citations, Nos. 2671481, 2671484,
2671485, 2671486, and 2671488, the Secretary did not designate
the violations involved as "Significant and Substantial". As to
the remaining four Citations resolved by the agreement, Nos.
2364698, 2671482, 2671487, and 2671489, the parties have agreed
that the violations described therein were "significant and
substantial".

 Four of the original 13 Citations (Nos. 2671483, 2671490,

2671491 and 2671492) remain for disposition. As part of their
settlement, the parties agree that the "significant and
substantial" designation thereon should be deleted and such will
be so ordered subsequently herein. The occurrence of all
violations being conceded, the issues involved for determination
here are the amount of appropriate penalties which should be
assessed for the four violations cited in Citations Nos. 2671483,
2671490, 2671491, and 2671492.

 The amount of a penalty should relate to the degree of a

mine operator's culpability in terms of willfulness or
negligence, the seriousness of a given violation, the business
size of the operator, and the mine operator's compliance history,
i.e., number and nature of violations previously discovered at
the mine involved. Mitigating factors include the operator's good
faith in promptly abating violative conditions and the fact that
a significantly adverse effect on the operator's ability to
continue in business would result from assessment of penalties at
a particular monetary level. Factors other than the six
above-mentioned criteria (which are expressly provided in the
Act) are not precluded from consideration either to increase or
reduce the amount of penalty otherwise warranted.

 Based on written stipulations submitted by the parties prior

to hearing, I find this to be a small mine operator (T. 60) with
an average history of prior violations (11 in the preceding
24-month period) who proceeded in good faith to promptly abate
these four violations upon notification thereof. Payment of
appropriate penalties will not jeopardize Respondent's ability to
continue in business. The remaining mandated assessment factors,
negligence and gravity, are separately discussed below as to each
of the four Citations.

                         CITATION NO. 2671483

    The standard infracted, 30 C.F.R.   56.12032, provides:

         "Inspection and cover plates on electrical equipment
         and junction boxes shall be kept in place at all times
         except during testing or repairs."

 The violative condition (or practice) involved is described

in the subject Citation as follows:

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"The main electrical panels cover plates were not in place. The
panels were rated on high voltage. In the event a person would
come in contact with energized part a serious injury would
occur."

 When observed by MSHA Inspector Edmundo Archuleta, the cover

plates were laying on the ground in an unlocked building, an 8
x 20 trailer. The Inspector was advised that an electrical
contractor was installing a new electrical system-but no one was
in the area (including employees) when the condition was
observed, nor were any warning signs up. The panel (conductors)
was energized at the time. A sign on the one door to the trailer
said: "Danger High Voltage". The record indicates that had
someone tripped or otherwise have contacted the exposed energized
wires, a fatality could have resulted. The Inspector felt it was
likely that such event could have occurred and that one person
would have been exposed to the hazard. Respondent showed that
there was no reason for any employee to have been in the building
and that the electrical contractor was the one who removed and
left off the cover plates. There was no evidence as to the length
of time the cover plates were off the panel. The electrical
contractor worked for Respondent for approximately four months
months and the inspection was conducted approximately midway or
toward the end of such period (T. 140).

 This is found to be a serious violation which resulted from

the negligence of Respondent. Since it is not a "significant and
substantial" violation, a penalty of $75.00 is found appropriate.

                         CITATION NO. 2671490

    The standard infracted, 30 C.F.R.   56.9007, provides:

         "Unguarded conveyors with walkways shall be equipped
         with emergency stop devices or cords along their full
         length."

 The violative condition cited is described in the Citation

as follows:

         "The conveyor belt feeding the stacker conveyor belt
         was not equipped with an emergency stop device with
         stop cord. The conveyor belt was in the area where
         person (sic) walk and work on it."

 At the hearing, Respondent contended that while the conveyor

had no emergency stop device and was unguarded it had no
"walkway" and was not covered by standard. Pursuant to the
settlement herein, however, the violation was conceded.

 The record indicates that the plant was not operating on the

day the violation was observed by the Inspector. The hazard
envisaged by the Inspector was that an employee could be caught
in the pinch points while cleaning up spillage around the

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conveyor. Only one miner would have been jeopardized by the
hazard created. Respondent presented convincing evidence that
because of the distance above ground at the particular place
where an employee might encounter the hazard there was only an
extremely remote chance that he would come into contact with the
pinch points (T. 213-214, 231-233).

 In view of the facts that the plant was not operating on the

day the violation was observed, the remoteness of the risk
created by the violation ever coming to fruition, and the
strength of Respondent's justification for questioning the
application of the standard to the condition to begin with, it is
concluded that only very moderate degrees of negligence and
gravity should be attributed to this violation. A penalty of but
$25.00 is found appropriate and is assessed

                      CITATION NO. 2671491

 The standard infracted, 30 C.F.R.   56.9007, is the same as

that quoted above in connection with the previous Citation. The
violative described therein is as follows:

      "The stacker conveyor belt in the main plant was not
      equipped with an emergency stop device with stop cord.
      The conveyor belt is located where persons walk by it
      or have to work on it."

 The Inspector's determinations with respect to this Citation

were the same as those made in connection with the previous
Citation, No. 2671490 (T. 243). The injuries he contemplated had
an accident occurred ranged from the type which might result in
"lost time" to those which might result in a fatality. The
Inspector's opinion was that the Respondent was negligent since
the violation was in "plain view" and that the degree of such
negligence was but "moderate" since the plant was not in
operation on the day of inspection. Respondent's evidence again
established that because of the height of the place where the
hazard was present it was "possible" but not likely that an
injury would result therefrom. As in the case of the violation
described in Citation No. 2671490, I conclude that only low
degrees of gravity and negligence should be attributed to this
violation. A penalty of $25.00 is assessed.

                      CITATION NO. 2671492

 The standard violated, 30 C.F.R.   56.14001, provides:

      "Gears; sprockets; chains, drive, head, tail, and
      takeup pulleys; flywheels; couplings; shafts;
      sawblades; fan inlets; and similar exposed moving
      machine parts which may be contacted by persons, and
      which may cause injury to persons, shall be guarded."

 The violative condition involved is described in the

Citation as follows:

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"The head pulleys on the west side of the cone crusher under
conveyor belt was not guarded. The unguarded pulley was within
the reach of persons who walk or work by the unguarded pulley."

 The Inspector testified that the injuries which could result

from this violation ranged from those resulting in "lost
workdays" to fatalities. The hazard he foresaw was "if somebody
was cleaning up or doing maintenance, they could come in contact
with the unguarded pinch point and somebody could have also
stumbled in and fell into the belt." He also attributed but a
moderate degree of negligence to Respondent since he felt that
after completion of the "expansion" program in progress at the
time, Respondent would have installed appropriate guarding. The
violative condition was open "to plain view." (T. 263). As with
other violations, Respondent established that the plant was not
running on the day in question. Respondent also showed that it
was quite unlikely that cleaning up spillage would be attempted
while the plant was in operation and the belts running (Tr.
266-267). Accordingly, the violation is found to be of a low
degree of gravity and to have resulted from only a moderate
degree of negligence on Respondent's part. As with the prior
three violations, the "significant and substantial" designation
is to be deleted-warranting a reduction in penalty. A penalty of
$25.00 is found appropriate.

                               ORDER

 Respondent shall pay the Secretary of Labor within 30 days

from the date hereof the penalties hereinabove individually
assessed for the 13 violations in the total sum of $619.00.

 Citation Nos. 2671483, 2671490, 2671491, and 2671492 are

modified to delete that portion thereof designating such
violations as being "significant and substantial" and are
affirmed in all other respects; the other nine Citations involved
are affirmed in all respects.

                               Michael A. Lasher, Jr.
                               Administrative Law Judge