Arcata Readimix

Plain-English summary

Arcata Readimix operated a small sand and gravel pit in California. MSHA cited the plant for exposed electrical conductors, missing or loose guards, an overdue fire-extinguisher inspection, and missing grounding-system testing. Judge Richard W. Manning found six violations and affirmed the citations, including one significant-and-substantial violation. He assessed a total civil penalty of $170, while finding Arcata's negligence very low and considering its small size and good-faith compliance efforts.

Decision snapshot

• Cited standard(s): 30 C.F.R. §§ 56.12030, 56.12032, 56.14107, 56.4201(a)(2), and 56.12028; 30 U.S.C. §§ 815 and 820
• Outcome: Six citations were affirmed and a total civil penalty of $170 was assessed.
• Key point: A temporary shutdown did not eliminate the violations where the plant could be restarted quickly and the cited conditions could expose employees during testing or operation.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

                          May 26, 1995

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 93-376-M
Petitioner : A.C. No. 04-02710-05509
:
v. : Docket No. WEST 93-380-M
: A.C. No. 04-02710-05510
ARCATA READIMIX, :
Respondent : Arcata Pit & Mill

                              DECISION

Appearances: Jeanne M. Colby, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco,
California, for Petitioner;
William J. O'Neill, President, Arcata Readimix,
Arcata, California, for Respondent.

Before: Judge Manning

 These cases are before me on petitions for assessment of

civil penalty filed by the Secretary of Labor, acting through the
Mine Safety and Health Administration ("MSHA"), against Arcata
Readimix ("Arcata"), pursuant to sections 105 and 110 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. '' 815 and

820. The petitions allege six violations of the Secretary's
     safety standards. For the reasons set forth below, I affirm the
     citations and assess civil penalties in the amount of $170.00.

     A hearing was held in these cases before Administrative Law
     Judge John J. Morris, in Eureka, California. The parties pre-
     sented testimony and documentary evidence, but waived post-hear-
     ing briefs. These cases were reassigned to me on April 25, 1995,
     for an appropriate resolution.

I. DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

 A.     Preliminary Matters

 The Arcata Pit & Mill is a small, sand and gravel pit in

Humboldt County, California. The citations that are the subject
of these proceedings were issued at Arcata's crushing and screen-
ing plant (the "plant") by MSHA Inspector Dennis Harsh on Febru-
ary 2 and 3, 1993.

Page 2

 Arcata maintains that its plant was shut down for the winter

at the time of the inspection. Lawrence Frank, a former super-
visor at the plant, testified that the main power center for the
plant was at a "remote shack" that was locked, and that only
three people had a key to this shack: William O'Neill, the
president, Jim O'Neill, the president's brother, and Mr. Frank.
(Tr. 38-39, 47-48; Ex. R-2). He further stated that a lock or a
lockout sign was on the electrical switch box inside the shack.
Id. He further testified that the plant was "in a state of semi-
disassembly." (Tr. 40). Mr. Frank stated that during the shut-
down, equipment at the plant was being taken apart and serviced
with the guards removed, "so when things pick up in the spring,
we don't have to deal with that." (Tr. 41). He stated that the
plant had not been in production since about December 1992. (Tr.
42-43). This testimony was supported by the testimony of William
O'Neill. (Tr. 53). Mr. O'Neill stated that the plant was shut
down and that he thought everyone knew that it was shut down,
including Inspector Harsh. (Tr. 53-55). He testified that all
of the conditions observed by the inspector would have been
corrected before the plant was put into operation in the spring.
(Tr. 53-55; 70-71). On that basis, Arcata argues that the
citations should be vacated.

 Inspector Harsh testified that, although the plant was not

operating at the time of the inspection, he believed that the
shutdown was only temporary. He testified that he was told by
Arcata employees that the "plant was down for repairs, clean-up,
and [a shaker] screen change." (Tr. 23). Inspector Harsh testi=
fied that these types of repairs are frequently made at crushing
and screening plants. (Tr. 65-66). He believed that "it was
just a temporary shutdown for these things which are necessary
from time to time." Id. In addition, he stated that no Arcata
employee advised him, at the time of the inspection or during the
close-out conference, that the plant was shut down for the win-
ter. (Tr. 28, 65-66). It was his understanding that the "plant
would be restarted or stopped as product was needed at any time."
(Tr. 66). Inspector Harsh also did not see any evidence that
Arcata was performing a major renovation of the plant or that any
equipment was being dismantled or torn apart for service. (Tr.
63-64). Finally, he testified that the power had not been dis-
connected from the plant and that all that was required to start
the plant was to "throw" a few switches. (Tr. 64).

 I credit the testimony of Inspector Harsh. I believe that

if the plant was totally shut down for the entire winter, someone
from Arcata would have advised Inspector Harsh of that fact dur-
ing his inspection or the close-out conference. Mr. O'Neill
testified that he saw Inspector Harsh "writing for two hours"
immediately following the inspection, but that he did not "antic-
ipate any type of problem [because] we were shut down." (Tr. 56-
57). Arcata's witnesses did not offer any explanation as to why

Page 3

the inspector was not notified of the shutdown except that
"everybody" knew about it and the plant was "pretty quiet." Id.
Upon receiving the citations, one would expect a mine operator
to say to the issuing inspector, "Wait a minute, you shouldn't
issue us any citations because we are shut down for the winter
and are servicing our equipment." Apparently, this issue was not
raised by Arcata until it filed its answer in these proceedings.
As stated above, Inspector Harsh testified that he did not see
any evidence that the plant was on a long-term shutdown or that
equipment was being torn apart and repaired. He stated that he
would not issue citations on equipment that was torn apart.
(Tr. 63).

 Inspector Harsh testified that the plant could have been

started by throwing a few electrical switches. Mr. O'Neill did
not seriously dispute that testimony. (Tr. 57-58). Thus, even
if one assumes that the plant had not been operating for some
time, it could have been restarted very quickly if more product
was needed. In addition, equipment could have been operated for
testing purposes during the repair process and Arcata's employees
could have been exposed to the conditions cited by the inspector.
Thus, I conclude that the citations issued by Inspector Harsh
should not be vacated on the basis that the plant was shut down
or that the conditions cited would have been corrected before the
plant was placed in production.

 B.   Docket No. WEST 93-376-M

 1. Citation No. 3913936 alleges that a bare electrical con-

ductor was within two inches of a metal start/stop switch in the
shaker power room. The citation states that the power cable had
been pulled from the fitting in the bottom of the switch, expos-
ing the electrical conductors. Bare wire was exposed in one 220=
volt conductor. The safety standard cited, 30 C.F.R. ' 56.12030,
provides that, "when a potentially dangerous condition is found
it shall be corrected before equipment or wiring is energized."

 There is no dispute that the conditions observed by the

inspector existed. Inspector Harsh estimated that someone enters
the shaker power room to turn on or off the switch about twice a
day. (Tr. 19-20). He said that the condition created a shock
and electrocution hazard because the bare wire was about two
inches from the switch. (Tr. 20-21) He determined that it was
reasonably likely that someone would contact the exposed wire and
suffer a severe shock or burns. Id. He further stated that the
Arcata employee who accompanied him on the inspection, Earl
Norris, indicated that the bare wire could seriously hurt
someone. (Tr. 18-19, 22).

Arcata contends that Mr. Norris, a loader operator, was not

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Page 4

 Mr. Frank testified that he pulled on electrical cables pe-

riodically to determine if they are firmly attached. (Tr. 39).
He believes that he exposed the wire when performing this test at
the cited location. (Tr. 39-40). He further testified that he
made a notation to have it repaired before the plant resumed
operation. Id.

 Based on the record as a whole, I find that the Secretary

established a violation of the safety standard. I also find that
the violation was of a significant and substantial nature ("S&S")
because there was a reasonable likelihood that the hazard con-
tributed to would result in an injury of a reasonably serious
nature. Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1994). I
find that the violation was serious.

 2. Citation No. 3913937 alleges that the cover for the

splice box on top of the cone crusher feed belt was loose and
dislodged, exposing the electrical conductors to weather con-
ditions and mechanical damage. The conductors were not damaged.
The safety standard cited, 30 C.F.R. ' 56.12032, provides that
"inspection and cover plates on electrical equipment and junction
boxes shall be kept in place at all times except during testing
or repairs."

 There is no dispute that the conditions observed by the

inspector existed. The inspector testified that "the cover had
worked its way loose and was hanging there by one screw with the
box wide open, exposing the inner conductors ... to any kind of
adverse weather condition." (Tr. 14-15). Mr. Frank testified
that, more than likely, the cover had been removed intentionally
during the shutdown when equipment was being repaired, and that
the cover is always in place during operation. (Tr. 39-40).

 Based on this evidence, I find that the Secretary estab-

lished a violation of the safety standard. There was no evidence
that the cover was off because the subject equipment was being
repaired or tested. I agree with the inspector that the vio-
lation was not S&S. The conductors and the splice were not
damaged. In addition, there was no evidence that miners were
likely to be in the immediate area or that the metal splice box
would become energized as a result of the violation. Accord-

authorized to be its walk around representative during the
inspection. William O'Neill, Mr. Frank and Jim O'Neill were not
available at the time of the inspection. Apparently, Mr. Norris
accompanied the inspector because nobody else was available.
This issue is not relevant and I have based my decision on the
testimony of the witnesses, not statements made by Mr. Norris to
Inspector Harsh.

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Page 5

ingly, I find that the violation was not serious.

 3. Citation No. 3913939 alleges that there was no guard

covering the pinch point on the smooth tail pulley of the cone-
crusher feed belt. It alleges that the exposed pinch point was
adjacent to the screen portion of the walkway, about 16 inches
above the walkway and about two feet from the inside edge of the
walkway. The citation states that the pulley was in a remote
area of the plant, but was still readily accessible. The safety
standard cited, 30 C.F.R. ' 56.14107, provides, in pertinent
part, that "moving machine parts shall be guarded to protect per-
sons from contacting ... drive, head, and takeup pulleys ... and
similar moving parts that can cause injury."

 There is no dispute that the conditions observed by the

inspector existed. Mr. O'Neill stated that the guards were off
so that the area could be cleaned out and the bearings underneath
the pulley checked. (Tr. 30-31). Mr. Frank testified that
shaker screens were being repaired and that welders from a con-
tractor were coming to repair supports for the shaker screens
underneath the shaker plant. (Tr. 40). He further stated that
aggregate had accumulated under the plant and the guards were
removed to clear the area out. (Tr. 40-41). He testified that
during the shutdown, all of the bearings were inspected and pul-
leys were pulled apart as part of Arcata's preventive mainte-
nance program. Id. He testified that everything would have been
replaced, including the guards, when "things pick[ed] up in the
spring." (Tr. 41).

 Based on the record as a whole, I find that the Secretary

established a violation of the safety standard. As stated above,
Inspector Harsh did not see any evidence that the equipment he
inspected was in the process of being repaired or "pulled apart."
There is no dispute that the pinch point was not guarded. It
could have been operated during the repair process without the
guard. I agree with the inspector that the violation was not
S&S. The parties concede that the pinch point was in a remote
area of the plant. I find that the violation was not serious.

 B.   Docket No. WEST 93-380-M

 1. Citation No. 3913935 alleges that the fire extinguisher

for the crushing plant had not had the required yearly mainte-
nance check since December 1991. The citation also states that
the extinguisher appeared to be operational and fully charged.
The safety standard cited, 30 C.F.R. ' 56.4201(a)(2), provides,
in pertinent part, that "at least once every twelve months, main-
tenance checks shall be made of [each fire extinguisher] to
determine that the fire extinguisher will operate effectively."

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Page 6

 There is no dispute that the maintenance check had not been

made. Inspector Harsh testified that the inspection tag on the
extinguisher had not been initialed during the previous 12
months. (Tr. 16-17). He further stated that the extinguisher
appeared to be operational and fully charged. Id. Mr. Frank
testified that Arcata had a contract with a fire extinguisher
service company to conduct the annual inspection but that it had
not been inspected because the son of the contractor had recently
died. (Tr. 37-38). He further stated that the inspection was
only two months overdue and that Arcata has entered into a new
service contract with another company. Id.

 Based on this evidence, I find that the Secretary estab-

lished a violation of the safety standard. The Mine Act is a
strict liability statute and a mine operator is legally respon-
sible for any violation that occurs at its mine. I agree with
the inspector that the violation was not S&S. Since it appears
that the extinguisher was in working condition, the violation was
technical in nature and was not serious.

 2. Citation No. 3913938 alleges that there was no guard

covering the spoke-type pulley and drive belt of the No. 4 con-
veyor belt. It alleges that the exposed pinch point was about 64
inches above and adjacent to the wooden walkway on the west side
of the shaker screen. The citation states that the amount of
exposure could not be established, but that the pulley was acces-
sible. The safety standard cited, 30 C.F.R. ' 56.14107, pro-
vides, in pertinent part, that "moving machine parts shall be
guarded to protect persons from contacting ... drive, head, and
takeup pulleys ... and similar moving parts that can cause
injury."

 There is no dispute that the conditions observed by the in-

spector existed. Inspector Harsh testified that he observed an
unguarded V-belt pulley within reach of and no more than seven
feet above a walkway. (Tr. 11). He stated that an injury was
unlikely because the pinch point was about 64 inches above the
walkway. Id. Mr. Frank testified that during the shutdown, all
of the bearings were inspected and pulleys were pulled apart as
part of Arcata's preventive maintenance program. (Tr. 40). He
testified that everything would have been replaced, including the
guards, when "things pick[ed] up in the spring." (Tr. 41).

 Based on the record as a whole, I find that the Secretary

established a violation of the safety standard. As stated above,
Inspector Harsh did not see any evidence that the equipment he
inspected was in the process of being repaired or "pulled apart."
There is no dispute that the pinch point was not guarded. It
could have been operated during the repair process without the
guard. I agree with the inspector that the violation was not

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Page 7

S&S. Given the height of the pinch point and the fact the in-
spector could not establish the amount of the exposure, I find
that the violation was not serious.

 3. Citation No. 3913940 alleges that continuity and resis-

tance testing of the electrical grounding system had not been
conducted since September 1991. The citation also stated that
the weather in the area is highly corrosive to metal and that
corrosion is one of the factors that can render the electrical
grounding system ineffective. The safety standard cited, 30
C.F.R. ' 56.12028, provides, in pertinent part, that "continuity
and resistance of grounding systems shall be tested immediately
after installation ... and annually thereafter." A record of the
tests is required to be kept.

 There is no dispute that the required test had not been

made. Inspector Harsh testified that when he uncovered a portion
of the grounding electrode, it showed signs of heavy corrosion.
(Tr. 25). Although the inspector marked the citation as S&S, he
stated at the hearing that it should not be considered S&S be-
cause he did not perform a test to see if the integrity of the
grounding system had been compromised by the corrosion. (Tr. 26,
see also 7). Mr. Frank testified that Arcata must depend upon
its contractor to conduct the inspections on an annual basis.
(Tr. 41). Because the contractor was four months late in con-
ducting the inspection, Arcata changed contractors. Id.

 Based on this evidence, I find that the Secretary estab-

lished a violation of the safety standard. The Mine Act is a
strict liability statute and a mine operator is legally re-
sponsible for any violation that occurs at its mine. I agree
that the violation was not S&S. The violation was serious be-
cause, without conducting the test, Arcata did not know if its
grounding system would protect its employees.

             II.   Civil Penalty Assessments

 Section 110(i) of the Mine Act, 30 U.S.C. ' 820(i), sets out

six criteria to be considered in determining the appropriate
civil penalty. I find that Arcata was issued four citations in
the 24 months preceding the inspection in this case. (Tr. 6).
I also find that Arcata is a small operator, employing about 23
people, with about 19,350 man-hours worked over the previous
year. (Tr. 6, 44). I also find that the civil penalties as-
sessed in this decision would not affect Arcata's ability to con-
tinue in business. The conditions cited by the inspector were
all timely abated. I find that Arcata is concerned about the
safety of its miners and made good faith efforts to comply with
MSHA's safety standards.

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Page 8

 I also find that Arcata's negligence was very low with re-

spect to each violation. As stated above, the Mine Act is a
strict liability statute. Asarco, Inc. v. FMSHRC, 868 F.2d 1195
(10th Cir. 1989). A citation issued by MSHA for a violation of a
safety standard must be affirmed if the facts show that the
standard was violated, even if the mine operator was not negli-
gent. The degree of the mine operator's negligence, however, is
an important factor in determining the civil penalty. I find
that Arcata was only slightly negligent with respect to the vio-
lations discussed above because its managers believed, in good
faith, that these conditions did not need to be corrected until

it resumed production and there is no evidence that these condi-
tions existed while the plant was operating, even for testing
purposes.

 Based on the criteria in section 110(i) of the Mine Act, 30

U.S.C. ' 820(i), I assess the following civil penalties, as dis-
cussed above:

                                               Assessed
 Citation Nos.           30 C.F.R. '      Penalty

   3913936                56.12030              $60.00
   3913937                56.12032               20.00
   3913939                56.14107               20.00
   3913935                56.4201(a)(2)          10.00
   3913938                56.14107               20.00
   3913940                56.12028               40.00

                          Total Penalty        $170.00

                       III.   ORDER

 Accordingly, the citations listed above are AFFIRMED, and

Arcata Readimix is ORDERED TO PAY the Secretary of Labor the sum
of $170.00 within 30 days of the date of this decision.

                          Richard W. Manning
                          Administrative Law Judge




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Distribution:

Jeanne M. Colby, Esq., Office of the Solicitor, U.S. Department
of Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA
94105-2999 (Certified Mail)

William J. O'Neill, President, ARCATA READIMIX, P.O. Box 4657,
Arcata, CA 95521 (Certified Mail)

RWM

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