Sierra Aggregate Company

Plain-English summary

Sierra Aggregate operated the Red Top Mine, a small surface mine that excavated and processed volcanic cinders. Judge Michael A. Lasher, Jr. considered seven alleged violations involving grounding records, diesel-fuel spillage, quarterly reporting, machine guarding, and access to elevated conveyor equipment. He vacated the citation for the quarterly report because the operator kept the required copy at its nearest mine office, but affirmed the other six citations and assessed penalties totaling $620. The judge also rejected the operator's argument that California regulation preempted federal mine-safety enforcement.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.12-8, 56.4-12, 56.4-7, 50.30(a), 56.14-1, and 56.11-1
• Outcome: Citation No. 2364580 was vacated, six other citations were affirmed, and $620 in penalties was assessed.
• Key point: The quarterly report rule required the operator to keep a copy at the mine office nearest the mine, not necessarily at the mine site.

Full text (FMSHRC public release)

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 85-162-M
PETITIONER A.C. No. 04-04707-05502

       v.                                    Docket No. WEST 85-174-M
                                             A.C. No. 04-04707-05503

SIERRA AGGREGATE COMPANY,
RESPONDENT Red Top Mine

                                  DECISION

Appearances: Joseph T. Bednarik, Esq., Office of the Solicitor,
U.S. Department of Labor, Los Angeles, California,
for Petitioner;
Mr. Donald Jolly, Bishop, 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
(herein the Secretary) pursuant to Section 110(a) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. Section 820(a)
(1977) (herein the Act). A hearing on the merits was held in
Bishop, California on September 16 and 17, 1986, at which
Respondent represented itself. The Secretary was well and ably
represented by counsel.

 The Secretary seeks assessment of penalties against

Respondent for a total of 7 alleged violations involved in the
two dockets which were consolidated for hearing in the Notice of
Hearing issued July 23, 1986.

                           PRELIMINARY DISCUSSION

1. Background.

   On March 18, 1985, MSHA Inspector Ronald Ainge conducted an
   inspection of the Red Top Mine operated by Sierra Aggregate
   Company near Victorville, California. At all relevant times the
   mine was owned and operated by Mr. and Mrs. Donald Jolly (T. 4,
   11, 41, 42) as a sole proprietorship in a community property
   state. The Red Top Mine is one of two owned and operated by the
   Jollys. The other, the Black Point Mine, is located near Bishop,
   California. The offices of Sierra Aggregate Company are located
   at 2239 Sunrise Drive in Bishop.

2. Federal Pre-Emption.

   Respondent, in correspondence (letter dated November 7,
   1985) has raised the issue that regulation of his mine by MSHA is
   improper since such is also regulated by the California
   Occupational Safety and Health Administration (CAL-OSHA). The
   California OSH Act does not preempt the Federal Mine Safety and
   Health Act of 1977. Brubaker-Mann, Inc., 2 MSHRC 227 (1980).
   Section 506 of the Act (provided in the original 1969 Mine Act
   and left intact by the 1977 Amendments) permits concurrent state
   and federal regulation, and under the federal supremacy doctrine,
   a state statute is void to the extent that it conflicts with a
   valid federal statute. Dixy Lee Ray v. Atlantic Richfield
   Company, 98 S.Ct 988, 435 U.S. 151, 55 L.Ed.2d 179 (1978);
   Bradley v. Belva Coal Company, 4 MSHRC 982, 986 (1982).
   Accordingly, Respondent's contention is found to lack merit and
   is rejected.

3. Interstate Commerce.

   The principal activity at Respondent's two mines is the
   excavation and processing of volcanic material into cinders. (T.
   42-43). This material is sold for the production of concrete
   blocks (T. 43), decorative bricks (T. 44), soil additives (T.
   44-45) and highway cinders (T. 70). Approximately 99% of the
   output of the Black Point Mine and 20% of the output of the Red
   Top Mine was sold to the State of California which used the
   cinders in the maintenance of highways, including U.S. Highway
   395 and Interstate 15 (T. 72-74).

   Sierra Aggregate Company owns a substantial amount of mobile
   equipment which is used at both mine sites. The equipment was
   manufactured out-of-state primarily by Caterpillar (T. 56-59,
   81, 84) and is powered by diesel fuel. The total amount of diesel
   fuel purchased by Sierra Aggregate Company in 1985 exceeded 7,000
   gallons (T. 83). Such was purchased from wholesale distributors
   of products manufactured by Chevron (T. 64) and Union Oil (T.
   63). I take notice that these are businesses engaged in
   interstate commerce.

   Accordingly, it is concluded that Respondent mine operator
   owns and operates the mine in question at which volcanic material
   (cinders) is mined and processed for sale or use in or affecting
   interstate commerce.

4. Respondent's Mine in Operation.

   Respondent contends that the mine (plant) was not in
   operation and that the Citations thus should not have been
   issued. The record, however, is clear that the plant was in
   operation on and off during the period February through May,
   1985, and that on the day of the inspection, Bret Redman, who was
   characterized by Mr. Jolly at the hearing as being a front-end
   loader operator and watchman, was engaged in work as were two
   other part-time employees. This contention simply lacks merit and
   is rejected.

   5. Preliminary Findings With Respect To Penalty Assessment
      Criteria.

   a. Respondent, a sole proprietorship owned by Donald Jolly
   and his wife, Janis, is a small mine operator engaged in the
   surface mining, crushing, sizing, loading, sale and shipment of
   volcanic cinder (T. 42-48, 63-66, 70).

   b. Respondent is a small mine operator (T. 31-33, 43, 53,
   69, 70).

   c. Respondent has no history of previous violations (T. 97).

   d. Payment of penalties in this matter will not jeopardize
   Respondent's ability to continue in business (T. 97, 98).

   e. With respect to Citations Nos. 2364580, 2364581, 2364582,
   2364583, and 2364586, the Secretary concedes that Respondent,
   after notification of the violation, proceeded in good faith to
   promptly abate the violative conditions. With respect to
   Citations Nos. 2364584 and 2364585 the Secretary contends that
   Respondent did not proceed in good faith to promptly abate the
   violative condition; findings will be made in the separate
   discussion of these two violations which follows.

   With the exception of the first Citation litigated and
   discussed herein, No. 2364580, which subsequently herein I have
   vacated, the remaining Citations charge contravention of safety
   and health standards in Part 56 of Title 30 of the 1984 Code of
   Federal Regulations (Revised as of July 1, 1984) covering sand,
   gravel and crushed stone operations.

   The mandatory assessment factors of negligence, gravity and,
   where pertinent, abatement, will be taken up subsequently in the
   discussion of the separate alleged violations.

Docket No. WEST 85-174-M (Citations Nos. 2364581, 2364582 and
2364583)

Citation No. 2364581

 The standard infracted, 30 C.F.R. § 56.12-8 provides:

 Mandatory. 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 test shall be made available on a
request by the Secretary or his duly authorized representative.

 The violative condition (or practice) was described by the

Inspector as follows:

        There was no record of a continuity and resistance of
        grounding check being done within the recent past or at
        least Mr. Redman could not produce them.

 The Respondent, Mr. Jolly, conceded on the record that the

violation occurred (T. 90). Although the Inspector did not
believe the violation was likely to result in the happening of
the contemplated hazards (minor shock to electrocution), the
gravity of the potential injury mandates a finding that the
violation was at least moderately serious. Mr. Jolly, as
previously noted, admitted the violation, and more specifically,
conceded that the test itself had not been performed.
Approximately one year prior to the issuance of the subject
citation, Inspector Ainge advised Mr. Jolly that he was required
to perform this test (T. 87, 88). Accordingly, Respondent is
found to be negligent in the commission of this violation. The
Secretary concedes that this violation was abated promptly and in
good faith upon Respondent's notification thereof (T. 102). A
penalty of $30.00 is assessed.

Citation No. 2364582

        The standard infracted, 30 C.F.R. § 56.4-12 (T. 136)

provides:

        All flammable and combustible waste materials, grease,
        lubricants or flammable liquids shall not be allowed to
        accumulate where they can create a fire hazard.

      The violative condition (or practice) was described by the

Inspector as follows:

        There was a large amount of diesel fuel spillage on the
        ground at the fueling area.

      The Inspector testified that there was extensive diesel fuel

oil on the ground inside Respondent's refueling shed and that the
mine operator had been notified of the fire hazard created
thereby on a previous inspection. There were fire ignition
sources in the area as well as other materials which would burn
in the event of a fire. Had a fire started in the area, the
violative condition observed, as a minimum, would have
contributed to and aggravated the hazard. Because diesel fuel is
not as flammable as gasoline and since the possibility of a fire
occurring was relatively remote, this violation is found to be
but moderately serious. The mine operator, having prior knowledge
of the hazard created, was clearly negligent. The violation was
abated in good faith by the Respondent upon notification thereof.
A penalty of $20.00 is sought by the Secretary and such is found
appropriate and assessed.

Citation No. 2364583

        The standard infracted, 30 C.F.R. § 56.4-7 (T. 135-137)

provides:

        "Means shall be provided to remove or control spilled
        flammable or combustible liquids."

      The violative condition (or practice) was described by the

Inspector as follows:

        "The buckets that were placed under the oil barrels on
        the oil rack had been turned upside down and oil had
        been allowed to contaminate the earth under the oil
        rack."

      The same violative condition had been cited on a previous

inspection by Inspector Ainge. As to seriousness, the Inspector
indicated that it would take "quite a fire" to get the
oil-contaminated area to burn. Accordingly, this violation is
found to be of a low degree of gravity and to have resulted from
Respondent's negligence in allowing the condition to re-occur.
Since this violation, like the previous one, was abated promptly
and in good faith by the mine operator upon notification, the
Secretary's administrative "single penalty assessment" of $20.00
is found appropriate and is assessed.

Docket No. WEST 85-162-M

Citation No. 2364580

        The standard infracted, 30 C.F.R. § 50.30(a) provides:
        Preparation and submission of MSHA Form
        7000-2, Quarterly Employment and Coal Production Report.
        (a) Each operator of a mine in which an individual
        worked during any day of a calendar quarter shall
        complete a MSHA Form 7000-2 in accordance with the
        instructions and criteria in § 50.30-1 and submit the
        original to the MSHA Health and Safety Analysis Center,
        P.O. Box 25367, Denver Federal Center, Denver, CO
        80225, within 15 days after the end of each calendar
        quarter. These forms may be obtained from

      MSHA Metal and Nonmetallic Mine Health and Safety Subdistrict
      Offices and from MSHA Coal Mine Health and Safety Subdistrict
      Offices. Each operator shall retain an operator's copy at the
      mine office nearest the mine for 5 years after the submission
      date. The violative condition (or practice) was described by the
      Inspector as follows:

      "Mr. Redman could not produce the quarterly reports
      that are to be maintained on file at the mine property
      as stated in Part 50, 30 Code of Federal Regulations."

      The regulation requires that the operator shall retain an

operator's copy of the required quarterly report form "at the
mine office nearest the mine . . . ." The record clearly
establishes that this small mine operator's nearest and only mine
"office" was in Bishop, California, and that indeed a copy of the
form required was retained there. The Inspector apparently was
under the impression at the time he issued the Citation that the
form was required to be kept at the mine site, since in the body
of the Citation he mentioned that such reports "are required to be
maintained at the mine property." Since under the precise
requirements of the regulation and in the perspective of the
geographic configuration of this modest mine operation the form
was kept where it was required to be, no violation is found to
have occurred.

Citation No. 2364584

      The standard infracted, 30 C.F.R. § 56.14-1 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 (or practice) was described by the

Inspector as follows:

      "There were not any guards on either the head or tail
      pulley on the feed belt under the feed hopper. The
      plant was down for crusher repair."

      During his inspection on March 18, 1985, Inspector Ainge

observed that neither the head pulley nor the tail pulley on the
conveyor system had guards to protect employees from contacting
the pinch point (T. 143). A guard would have prevented contact
between the pinch point and an individual's body or clothing or
any tools which the individual may be using (T. 144). According
to Mr. Ainge, the most likely result of such contact would be a

loss of limb (T. 151). Since the plant was not in production at
the time of the inspection, Mr. Ainge felt that an injury was not
likely to occur (T. 151). The violation is thus found to be of
only a moderate degree of seriousness.

 Inspector Ainge discussed the condition with Mr. Redman (T.

151) and explained what modification would be required to abate
the hazard (T. 152). An abatement date of April 2, 1985, was
selected (T. 152). On May 10, 1985, the conveyor was reinspected
by Inspector Ainge (T. 152). At that time, the head pulley was
guarded but no work had been performed on the tail pulley (T.
153). A continuation was issued by the Inspector (T. 153).

 Inspector Ainge reinspected the conveyor on May 30, 1985. No

additional work had been performed on the tail pulley (T. 153). A
Section 104(c) non-compliance order was issued by Ainge after
which abatement was accomplished.

 While there was no specific evidence of Respondent's

negligence attendant to the initial violation (T. 158),
Respondent's failure to promptly abate the violation after
notification thereof was willful; the plant was in operation at
least four days during the interim period after the Citation was
issued and before abatement was accomplished (T. 158; 2d
Transcript, T. 17). A penalty of $200.00 is assessed.

Citation No. 2364585

      The standard infracted, 30 C.F.R. § 56.14-1 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 (or practice) was described by the

Inspector as follows:

      "The head pulley on the 30" x 80-inch feed belt was
      not guarded. The plant was not working due to repair on
      the crusher."

      The Inspector testified that a miner could have been pulled

into the head pulley with resultant severe injuries including the
separation of a limb. It was also his opinion, however, that it
was unlikely such an accident would occur. The Respondent only
partially abated the violative condition even after the Inspector
extended the original abatement time, and it was necessary for
the Inspector to issue a Section 104(b) non-compliance order. No
evidence of negligence or willfulness was proffered with respect
to the initial commission of the violation. A penalty of $200.00
is assessed in view of the Respondent's intransigence or
substantial neglect with respect to prompt abatement of the
violation.

Citation No. 2364586

 The standard infracted, 30 C.F.R. § 56.11-1, relating to

travelways, provides:

      "Safe means of access shall be provided and maintained
      to all working places."

 The violative condition (or practice) was described by the

Inspector as follows:

      "There is three elevated conveyor belts that have gear
      reduction boxes on them. This area must be serviced at
      regular intervals. The people have been walking up the
      conveyor belts to access these areas."

 The hazard foreseen by the Inspector was that miners

servicing and lubricating would be required to walk up the
conveyor belt to do so and there being no "safety means" present
such personnel could fall to the ground, a distance of some 40
feet. Had such an accident occurred, there was a "strong
possibility" of a fatal injury, according to the Inspector.
Although Respondent was given one month to abate the violation,
such was not accomplished. The Inspector concluded, and I find,
that Respondent knew of the violative condition/practice and was
negligent in continuing such. While it does not appear that
Respondent proceeded in good faith to promptly abate the
violation after notification, Petitioner specifically makes no
such contention, so it is found that Respondent did abate the
violation in good faith. This violation is serious in view of the
gravity of the hazard posed. Further, Respondent presented no
rebuttal to the Secretary's allegation that this was a "serious
and substantial" violation. In view of the severity of the hazard
posed by the violation, the operator's apparent lack of concern
for compliance with mine safety standards, and the Inspector's
testimony as to the likelihood of the occurrence of an accident,
it is concluded that the Secretary established the prerequisite
elements of proof for "significant and substantial" violations
mandated by the Federal Mine Safety and Health Review Commission
in its decision in Mathies Coal Co., 6 FMSHRC 1 (1984), to wit:

      "(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 a reasonably serious nature."

 In the premises, the Citation is affirmed in all respects and a

penalty of $150.00 is assessed.

                               ORDER

                        1. Citation No. 2364580 is vacated.

                2. The remaining 6 Citations hereinabove discussed are

affirmed in all respects.

                3. Respondent shall pay the Secretary of Labor within 30

days from the date hereof the six penalties hereinabove
individually assessed in the total sum of $620.00.

                               Michael A. Lasher, Jr.
                               Administrative Law Judge