Mohave Concrete & Materials Inc.

Plain-English summary

Mohave Concrete operated a metal and nonmetal processing plant where MSHA cited unguarded moving machine parts, uncovered junction boxes, a missing conveyor emergency stop device, improper electrical fittings, and failure to notify MSHA before starting operations. Judge John J. Morris affirmed the citations and assessed penalties for all listed conditions except one citation involving a crusher flywheel and drive, which he vacated. The total penalty was $650, including $50 penalties for most guarding citations, $20 for the junction-box citations, and smaller penalties for the other violations. The decision followed a Commission remand for a hearing on the merits.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.14001, 56.12032, 56.9007, 56.12008, and 56.1000
• Outcome: All listed citations were affirmed except Citation 2366236, which was vacated; total penalties were $650.
• Key point: The judge treated exposed moving parts, uncovered electrical boxes, missing emergency-stop equipment, improper cable fittings, and failure to notify MSHA as separate violations, while vacating the citation for the crusher flywheel and drive.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. MOHAVE CONCRETE
DDATE:
19870622
TTEXT:

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

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 86-14-M
PETITIONER A.C. No. 02-02253-05501

       v.                           Mohave Concrete

MOHAVE CONCRETE & MATERIALS
INC.,
RESPONDENT

                        DECISION AFTER REMAND

Appearances: Marshall P. Salzman, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco, California,
for Petitioner; Mr. Larry Rinaldis, Mohave Concrete
& Materials, Incorporated, Lake Havasu City, Arizona,
pro se.

Before: Judge Morris

 On November 18, 1986, the Federal Mine Safety and Health

Review Commission remanded the captioned case and directed the
judge to consider either the sufficiency of the cause asserted or
the underlying merits of the case.

 Subsequently Chief Administrative Law Judge Paul Merlin

ruled that the operator should not be held in default. He further
assigned the case to the undersigned for a hearing on the merits.

 The hearing took place in Las Vegas, Nevada on February 19,

1987. The parties waived their right to file post-trial briefs.

                                  Issues
      

      The issues presented are whether the violations occurred; if
      so, what penalties are appropriate.

                               Stipulation
      

      At the commencement of the hearing the parties agreed the
      Secretary could present evidence of one unguarded machine part
      and one junction box. In turn this evidence would be generally
      applicable to the similar remaining citations (Tr. 6, 7).

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They further agreed that respondent is a small operator without
any adverse history (Tr. 8Ä10).

                      Summary of the Case

 Ronald W. Barri, an MSHA inspector for eight years,

inspected respondent's plant on June 5, 1985 (Tr. 15, 16).

 The plant was in operation and no one claimed it had been

shut down or was being repaired. When he arrived on the site he
talked to the dispatcher, who directed him to the foreman (Tr.
16, 17). The foreman shut down the plant before beginning the
inspection (Tr. 17).

 In connection with Citation 2366229 the inspector observed

that the tail pulley of the main plant conveyor was unguarded.
Any employee servicing or cleaning the area could come in contact
with it (Tr. 18; Ex. P15). At the time an employee was removing
large rocks and roots from the conveyor. If a person was pulled
into the tail pulley he could be severely injured (Tr. 19).

 The State of Nevada had inspected respondent three weeks

before the MSHA inspection (Tr. 19, 20). The state representative
reported to MSHA that the plant was in bad shape.

 Citations 2366229, 2366232, 2366233, 2366234, 2366235,

2366236, 2366237, 2366238, 2366241 and 2366244 all relate to the
unguarded movable machine parts.

 Citation 2366236, involving the crusher flywheel and drive,

because of the exposure involved a more serious hazard than the
remaining citations (Tr. 20, 21; Ex. P5, P6). The gravity of the
remaining conditions was pretty much the same (Tr. 21). Further,
the observability and duration of the conditions were about the
same (Tr. 22).

 Respondent abated the violations within the specified time

but the new guards were insufficient. They did not prevent a
person from reaching behind and contacting the pulleys (Tr. 22).

 The described condition of the unguarded machine parts

resulted in the issuance of ten citations for the violation of 30
C.F.R. 56.14001. The cited regulation provides as follows:

      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.

 Citation 2366231 relates to a junction box for the feed

conveyor drive motor. The box did not have a cover (Tr. 24; Ex.
P17). If a short occurred the conveyor frame could be energized.
This 440 volt exposure could electrocute the four workers in the

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area who might contact the frame. The junction box, which was
readily observable, was five or six feet above the ground (Tr.
25). The foreman indicated this condition had existed for some
time (Tr. 25, 26).

 Citations 2366231, 2366239, 2366240, 2366242, 2366243,

2366245 and 2366246 all involve junction boxes with the same
conditions as previously described (Tr. 26). Exhibit P14 shows a
switch on the three-quarter inch rock conveyor. The switch was in
use and energized (Tr. 26, 27).

 The condition of the junction boxes caused the inspector to

issue seven citations for the violation of 30 C.F.R. 56.12032.
The cited regulation provides as follows:

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

 The inspector further observed a well traveled path,

equivalent to a walkway, alongside the feed conveyor for the main
plant. The failure to provide such an emergency stop cord
resulted in the issuance of Citation 2366230 for a violation of
30 C.F.R. 56.9007. The cited standard provides as follows:

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

 Two employees were exposed to the hazard, one was directly

alongside the conveyor. A worker in this position could contact
the moving conveyor, or the troughing idlers (Tr. 27, 28). Death
or serious injury is a probable result from this hazard. It was
indicated the condition had been there for several years (Tr.
28).

 The inspector saw where the power cables enter into the

metal switch gear boxes. The boxes were not equipped with proper
fittings (Tr. 29, Ex. P14). The condition could cause the metal
frame to cut through the insulation of the cable thereby causing
a short. If a short occurred anyone touching the box could be
electrocuted. Since the cables were in good condition it was
unlikely that an accident would occur (Tr. 30).

 The above condition resulted in the issuance of Citation

2366247 alleging a violation of 30 C.F.R. 56.12008. The cited
standard provides as follows:

      Power wires and cables shall be insulated adequately
      where they pass into or out of electrical compartments.
      Cables shall enter metal frames of motors, splice
      boxes, and electrical compartments only through proper
      fittings. When insulated wires, other than cables, pass
      through metal frames, the holes shall be substantially
      bushed with insulated bushings.

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The mine had been in operation for several years before the
inspection but the company had not notified MSHA of its
activities (Tr. 31).

 This situation resulted in the issuance of Citation 2366258

alleging a violation of 30 C.F.R. 56.1000. The cited standard
provides as follows:

      The owner, operator, or person in charge of any metal
      and nonmetal mine shall notify the nearest Mine Safety
      and Health Administration and Metal and Nonmetal Mine
      Safety and Health Subdistrict Office before starting
      operations, of the approximate or actual date mine
      operation will commence. The notification shall include
      the mine name, location, the company name, mailing
      address, person in charge, and whether operations will
      be continuous or intermittent.
      When any mine is closed, the person in charge shall
      notify the nearest subdistrict office as provided above
      and indicate whether the closure is temporary or
      permanent.

 At the time of the inspection the plant was running. In

addition, the inspector saw the conveyors in motion, they were
also shipping cement at a nearby batch plant. Further, an
employee was picking rocks off the conveyor and another was
running a loader feeding the plant. An additional worker was
running a bulldozer pushing sand (Tr. 46, 47).

 When he appeared the day following the inspection Mr.

Polidori didn't claim the plant hadn't been in operation nor did
he claim there had been a test run that day (Tr. 51).

 Quinto Polidori, President of Mohave Concrete, testified for

the respondent. He indicated the company also has a plant at Lake
Havasu City, Arizona. They have been in operation for 12 years
and never been cited (Tr. 69).

 The plant involved in the instant case has been in operation

for four and one-half years. The company does its best to keep
and maintain a safe operation. The company received its lease
from the Fort Mojave Indians in 1981. At that time he was told
that no permit was required (Tr. 70).

 At the time of this inspection the plant was not in

operation. The jaw crusher had been removed. Further, the rock
had been emptied from the hopper and it was picked up by hand
(Tr. 71). The condition the inspector observed was temporary
since they were emptying the hopper by hand (Tr. 71).

 The company has had no difficulty with the lessor Indian

Tribe (Tr. 72; Ex. R6).

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The parties stipulated that if Mr. Rinaldis testified he would
indicate that the company previously had some incompetent people
working for it. Further, he would testify that Mr. Polidori is a
safe operator (Tr. 75).

 Witness Polidori further explained his drawing showing his

conveyor and hopper (Tr. 77, 78; Ex. R5). At the time the jaw
crusher was broken down and flat on the ground (Tr. 78). The
plant was not in operation (Tr. 86, 88, 100)

 During the inspection the conveyor was on the ground. The

workers put the conveyor down to empty the hopper (Tr. 80). Also
the guard was off so the machine could be tested (Tr. 81, 82).

 The plant had been shut down three or four weeks, after the

crusher broke down. This occurred after the state inspection (Tr.
83).

 When the operation is run without a crusher it is referred

to as a pit run. Since materials were inside the hopper, they did
not operate as a pit run (Tr. 84).

 In Citation 2366236 the guard was on the ground because

repairs were being made (Tr. 87). The witness denies there is a
part that should be guarded in Citation 2366237 (Tr. 89; Ex. P7,
P9). In connection with Citation 2366241 there was a guard but a
worker was changing the whole setup (Tr. 90; Ex. P9).

 Concerning Citation 2366231 there was a cover but it had

been taken off for repairs (Tr. 91).

                   Evaluation of the Evidence

 Concerning the unguarded machine parts the pivitol issue

focuses on whether the plant was in operation at the time of the
inspection. The inspector's testimony is clear that it was
functioning. On the other hand, respondent's evidence is, at
times, obscure.

 I find from the credible evidence that the plant was in fact

in operation on the day of the inspection. Inspector Barri's
testimony was precise on this issue; the employee was picking
rock from the conveyor. Another worker was operating a loader;
some conveyors were in motion (Tr. 46, 47). The owner, who was
not present at the site until the following day, never claimed
the plant was not in operation (Tr. 51). However, I agree with
respondent's president, Quinto Polidori, that an unguarded part
was being repaired on the day of the inspection. The presence of
the worker picking rocks from the conveyor confirms this view. As
a result of the repairs a worker could not be exposed and it is
appropriate to vacate Citation 2366236 (Tr. 87; Ex. P5, P6).

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The remaining guarding citations should be affirmed as the
workers were exposed to these moving unguarded parts.

 The citations relating to the cover plates should also be

affirmed. All of the cited junction boxes lacked cover plates.
Respondent claimed one of the boxes was being repaired. However,
no credible evidence supports this assertion. In addition,
respondent's witness was not present on the day of the
inspection.

 The citation concerning the lack of a stop device along the

conveyor should be affirmed. The conveyor did not have a walkway
as such but Inspector Barri observed a well traveled path
adjacent to the conveyor. Such a path would be equivalent to a
walkway within the terms of 56.9007.

 Concerning the power cables entering the metal gear box the

evidence establishes that the metal frames lacked proper
fittings. The citation should be affirmed.

 Respondent asserts that since it was a lessee on an Indian

reservation it did not have to notify MSHA of its activities.
Respondent's argument is contrary to the law. A general statute
in terms applicable to all persons includes Indians and their
property interests. FPC v. Tuscarora Indian Nation, 362 U.S. 99,
80 S.Ct 543, 4 L.Ed.2d 584 (1960); Donovan v. Coeur d'Arlene
Tribal Farm, 751 F.2d 1113 (1985).

 The citation alleging respondent's failure to notify MSHA of

its activities should be affirmed.

                        Civil Penalties

 The statutory criteria to assess a civil penalty is

contained in Section 110(i) of the Act, now 30 U.S.C. 820(i).
It provides as follows:

      The Commission shall have authority to assess all civil
      penalties provided in this Act. In assessing civil
      monetary penalties, the Commission shall consider the
      operator's history of previous violations, the
      appropriateness of such penalty to the size of the
      business of the operator charged, whether the operator
      was negligent, the effect on the operator's ability to
      continue in business, the gravity of the violation, and
      the demonstrated good faith of the person charged in
      attempting to achieve rapid compliance after
      notification of a violation.

 In connection with the above guidelines it appears that

respondent has no adverse prior history. However, this could
readily arise from the operator's failure to report its
activities to MSHA. The parties agree as to the small size of the
operator (Tr. 10); hence, the proposed penalties appear
appropriate. The violative conditions involving the moving machine

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parts, cover plates, conveyor and bushings were open and obvious.
The operator must, accordingly, be considered as negligent. The
failure to notify MSHA should also be considered as negligence on
the part of the operator. The operator had another site not
located on an Indian reservation. As such he should have inquired
as to his rights as a lessee of Indian property. Whether the
imposition of penalties would adversely effect the operator is an
affirmative defense, Buffalo Mining Co., 2 IBMA 226 (1973);
Associated Drilling, Inc., 3 IBMA 164 (1974). Respondent offered
no evidence on this issue. Except for the reporting requirement
the gravity of the remaining violations is moderate. I credit the
operator with statutory good faith. The company attempted to
abate the conditions, although the inspector later found its
guarding of the machine parts was inadequate. The deficiency was
then corrected.

 On balance, I believe the civil penalties set forth in the

order of this decision are appropriate.

 Based on the entire record and the factual findings made in

the narrative portion of this decision I conclude that the
Commission has jurisdiction to decide this case. Further, I enter
the following:

                              ORDER

 1. (Unguarded moving machine parts): The following citations

are affirmed and penalties are assessed as noted:

           Citation                    Penalty

           2366229                     $50
           2366232                      50
           2366233                      50
           2366234                      50
           2366235                      50
           2366236                    Vacated
           2366237                      50
           2366238                      50
           2366241                      50
           2366244                      50

 2. (Junction boxes)

           Citation                    Penalty

           2366231                     $20
           2366239                      20
           2366240                      20
           2366242                      20
           2366243                      20
           2366245                      20
           2366246                      20

 3. (Emergency stop device)

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Citation Penalty

2366230 $30

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4. (Insulated bushings)

              Citation                Penalty

              2366247                 $20

    5. (Failure to notify MSHA)

              Citation                Penalty

              2366258                 $10

 6. Respondent is ordered to pay to the Secretary the sum of

$650 within 40 days of the date of this decision.

                                  John J. Morris
                                  Administrative Law Judge