Hi Valley Crushing Inc.

Plain-English summary

Hi Valley Crushing operated a small portable crushing plant in Colorado. The judge affirmed four citations and orders involving unguarded tail pulleys, an incomplete guard, missing electrical grounding tests, and missing workplace examination records, finding that the violations were serious or the result of aggravated conduct as specified in the decision. The judge reduced the proposed penalties based primarily on the operator's small size and assessed a total civil penalty of $900. The order required payment within 40 days, after which the proceedings would be dismissed.

Decision snapshot

• Cited standard(s): 30 C.F.R. §§ 56.14107(a), 56.14112(b), 56.12028, and 56.18002(a)
• Outcome: Four citations and orders were affirmed, with penalties reduced to a total of $900.
• Key point: A small operator's practice of warning workers away from unguarded equipment did not satisfy the guarding standards, and the testing exception did not permit extended operation without guards.

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

                                      October 22, 1999

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 99-190-M
Petitioner : A.C. No. 05-04422-05508
:
v. : Docket No. WEST 99-304-M
: A.C. No. 05-04422-05510
HI VALLEY CRUSHING INC., :
Respondent : Portable Plant #1

                                         DECISION

Appearances: Edward Falkowski, Esq., Office of the Solicitor, U.S. Department of
Labor, Denver, Colorado, for Petitioner;
John Carroll, owner, Hi Valley Crushing Inc., Villa Grove, Colorado,
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 Hi Valley Crushing (“Hi Valley”), pursuant to sections 105 and 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). A hearing was held
in Denver, Colorado, on October 1, 1999.

                  I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

    Hi Valley operates Portable Plant No. 1, which was in Chaffee County, Colorado, at the

time of the MSHA inspection. On October 15, 1998, MSHA Inspector Steven Ryan inspected
the portable plant. Mr. John Carroll, the owner of the plant, was the only person present at the
time of the inspection. Mr. Carroll employs one other person, his son, at the plant. Inspector
Ryan issued one citation and four orders under section 104(d)(1) of the Mine Act.

      A. Citation No. 7923099

      Citation No. 7923099 alleges a violation of 30 C.F.R. § 56.14107(a), as follows:

             There is no guard to the self-cleaning tail pulley of the Kolberg
             stacker conveyor that feeds the plant screen, to protect a person

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           from making contact with the moving machine part that can cause
           a serious injury to a person. The tail pulley is approximately two
           feet up off the ground, and there is a shovel in the area, and the
           area has been shoveled out under the tail pulley. One other
           employee normally works around the plant while in operation. The
           owner-operator stated that he and his son, the other employee,
           know what is wrong with the plant and do not go around these
           areas when the plant is in operation. The owner also stated that he
           knew that the pulley should be guarded, but just had not got around
           to building a guard. The plant has been in operation at this
           location for at least one month.

    Inspector Ryan determined that the violation was of a significant and substantial nature

(“S&S”) and was the result of Hi Valley’s high negligence. He issued the citation under section
104(d)(1) because he believed that the violation was the result of the operator’s unwarrantable
failure. Section 56.14107(a) provides, in part, that “[m]oving machine parts shall be guarded to
protect persons from contacting ... drive, head, tail, and takeup pulleys ... and similar moving
parts that can cause injury.” The Secretary proposes a penalty of $500 for this alleged violation.

     There is no dispute that the tail pulley was not equipped with a guard. The conveyor belt

was running at the time of the inspection and material was being dumped onto the moving belt.
(Tr. 19-20; Ex. 7). Inspector Ryan testified that the pinch points of the tail pulley were very
accessible and that he could see a shovel in the area. The inspector determined that the violation
was the result of Hi Valley’s unwarrantable failure because Mr. Carroll told him he knew that the
tail pulley was not guarded and that a guard was required. (Tr. 27). The inspector testified that
Mr. Carroll told him that he did not have time to make and install a guard. (Tr. 23). He also
testified that Mr. Carroll told him that the pulley had been protected by a guard when the plant
was at the previous job site.

    Mr. Carroll testified that a guard was in place when he was crushing at the Henderson

Mill in Grand County, Colorado. (Tr. 109, 141-42). He removed the guard after the plant was
transported to the Chaffee County location because he needed to construct a new hopper for that
conveyor. (Tr. 114). He stated that the "hopper is a structural part of the guard." Id. He stated
that he had just finished constructing the hopper and had not yet installed a guard when the
inspector arrived. He indicated that, although the plant had been at the Chaffee County location
for about 30 days, he had run the plant for only about half a day. (Tr. 113). He testified that he
was running material to test the hopper and other components at the plant. Id. He said that "we
weren’t in full-blown operation." Id. Upon examination by the judge, Mr. Carroll stated that he
had been running for about two weeks on an intermittent basis to check everything out. (Tr.
115). He stated that he may have also been running material for a gradation test to check the
quality of the product. Id. Mr. Carroll testified that neither he nor his son would have shoveled
accumulated material from around the pulley while the plant was running. (Tr. 127). Mr. Carroll
contends that the violation was not serious and that Hi Valley’s negligence was not high, given
these circumstances. (Tr. 123).

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    There is no dispute that the tail pulley was not guarded. It is also clear that the pulley

was near the ground and was directly accessible to anyone walking through the area. Although
Mr. Carroll testified that he knew that a guard was required, he believed that there was a
provision that allowed an operator to test his equipment before he replaced the guards. (Tr. 129).
I agree with Mr. Carroll that if Inspector Ryan issued a citation while Hi Valley was installing
and testing the new hopper assembly, it might be appropriate to vacate the citation. See 30
C.F.R. § 56.14112(b). In this case, however, the new hopper had been in place for two weeks
and the plant was being operated intermittently during that period. (Tr. 134). This period is too
long to be considered a "test" that would allow the pulley to remain unguarded. A crusher
operator cannot permit a pulley to remain unguarded during the shakedown period for the plant.
Hi Valley was required to provide a guard once the hopper was installed. The "testing"
exception requires that the area be guarded as soon as possible after changes are made so that
employees are not exposed to the hazard. Inspector Ryan testified that Hi Valley had crushed a
considerable quantity of material during this two-week period. (Tr. 147-48). I find that the
Secretary established a violation.

    I also find that the Secretary established that the violation was S&S. An 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 ... mine safety or health
hazard." 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." National Gypsum Co., 3 FMSHRC 822, 825
(April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set out a
four-part test for analyzing S&S issues. Evaluation of the criteria is made assuming "continued
normal mining operations." U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). The
question of whether a particular violation is S&S must be based on the particular facts
surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988).

    The Secretary must establish: (1) the underlying violation of the safety standard; (2) a

discrete safety hazard, 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. The Secretary is not
required to show that it is more probable than not that an injury will result from the violation.
U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996).

    There was a violation of the standard and a measure of danger to safety contributed to by

the violation. The issue is whether there was a reasonable likelihood that the hazard contributed
to by the violation would result in an injury. As discussed below, I find that the Secretary
established that an injury was reasonably likely in this instance and that such an injury would be
of a reasonably serious nature, assuming continued normal mining operations.

    Hi Valley argues that because only two people were employed at the crusher, Mr. Carroll

and his son, the possibility of an injury was remote. Mr. Carroll argues that both he and his son

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knew that the unguarded pulley presented a hazard when the plant was operating and,
consequently, they would not work around when the plant was running. He argues that the safety
standard is more applicable to large mines because employee exposure is greater. I agree that
Mr. Carroll and his son would not purposefully take actions that would endanger their own
safety. Nevertheless, employees frequently come in contact with moving machine parts by
accident, or as a result of momentary inattention or ordinary human carelessness. (Ex. 10
through 13). Inspector Ryan testified that during MSHA accident investigations, it is often
discovered that the employee who was seriously injured by an unguarded pinch point was not
supposed to be working near the equipment when the accident occurred. (Tr. 60-61). I must take
into consideration the vagaries of human conduct when analyzing the S&S issue. The fact that
only two people are employed at the crusher does not mitigate the hazard. Inspector Ryan
testified that MSHA’s records show that the accident rate at sand and gravel mines with five or
fewer employees is greater than accident rates at larger mines. (Tr. 148-49). In addition, other
people are occasionally at the plant, including truck drivers and employees of the company that
owns the property on which the crushing plant was operating. (Tr. 59). The violation was S&S.

    The more difficult issue is whether the violation was the result of Hi Valley’s

unwarrantable failure to comply with the safety standard. The Commission held that
unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Emery
Mining Corp., 9 FMSHRC 1997, 2004 (December 1987). Unwarrantable failure is characterized
by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or a “serious
lack of reasonable care.” Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189,
193-94 (February 1991). The Commission stated that “a number of factors are relevant in
determining whether a violation is the result of an operator’s unwarrantable failure, such as the
extensiveness of the violation, the length of time that the violative condition has existed, the
operator’s efforts to eliminate the violative condition, and whether an operator has been placed
on notice that greater efforts are necessary for compliance.” Mullins and Sons Coal Co., Inc., 16
FMSHRC 192, 195 (February 1994)(citation omitted). The Commission also takes into
consideration the mine operator’s knowledge of the existence of the dangerous condition.
Cyprus Plateau Mining Corp., 16 FMSHRC 1604, 1608 (August 1994).

     Inspector Ryan based his unwarrantable failure determination on the fact that Mr. Carroll

knew that the pulley was not guarded and also knew that tail pulleys are required to be guarded.
(Tr. 23, 34). The inspector testified that Mr. Carroll advised him that the pulley had been
guarded at the Henderson Mill before the plant was moved to the present site. Mr. Carroll
testified that both he and his son knew where the hazards were at the plant and that they had
sufficient judgment to avoid these hazardous areas when the plant was operating. (Tr. 60, 126-
28). Mr. Carroll apparently believed that he could run the plant during the plant’s shakedown
period without guards in place, as long as the plant was not "in production."

    I find that the violation was obvious and had existed for at least two weeks. Hi Valley

received nine citations for violations of section 56.14107 since 1990. (Ex. 2). Mr. Carroll knew
that the violation existed and also knew that it created a hazardous condition. His argument that
Hi Valley’s negligence was low because everyone knew that it was hazardous is not credible. A

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mine operator cannot comply with the requirements of the Secretary’s safety standards by
pointing out all of the hazards at the mine and telling employees to stay away from them. Hi
Valley’s argument that it did not know that it could not "test" the plant with the guard off is also
not convincing. Section 56.14112(b) provides that guards "shall be securely in place while
machinery is being operated, except when testing or making adjustments which cannot be
performed without removal of the guard." This is a very narrow exception. A reasonably
prudent person would not interpret this exception to allow a mine operator to run machinery for
an extended period of time without guards on the basis that the operator was "testing" the plant to
make sure that it was capable of producing crushed rock to the customer’s specifications. I credit
Inspector Ryan’s testimony that there were large piles of material at the site that had been
crushed by Hi Valley during the two week "testing" period. (Tr. 161-63). Once the new hopper
was in place, it was clear that a guard was required. I find that the Secretary established that Hi
Valley’s failure to install a guard to protect the cited tail pulley was a result of a serious lack of
reasonable care that constitutes aggravated conduct.

   B. Order No. 7923105

   Order No. 7923105 alleges a violation of 30 C.F.R. § 56.14112(b), as follows:

           There is no guard on the top portion of the tail pulley guard of the
           fines stacker conveyor that allows a person to make contact with
           the moving machine part that can cause serious injury. Guards
           shall be securely in place when machinery is in operation, except
           when adjusting or testing that cannot be performed without the
           removal of the guard. The owner-operator stated that he knew the
           guard was off but did not go near the area when the plant was in
           operation.

    Inspector Ryan determined that the violation was S&S and was the result of Hi Valley’s

high negligence. He issued the order under section 104(d)(1) because he believed that the
violation was the result of the operator’s unwarrantable failure. Section 56.14112(b) provides
that “[g]uards shall be securely in place while machinery is being operated, except when testing
or making adjustments which cannot be performed without removal of the guards.” The
Secretary proposes a penalty of $600 for this alleged violation.

    There is no dispute that the top of the guard was missing. Inspector Ryan testified that

only side guards were provided for the tail pulley and that the pinch points on the pulley were
easily accessible. (Tr. 30). He stated that if someone were to slip, trip, or fall in the area, he
could easily come into contact with the moving parts and sustain a serious injury. (Tr. 32). The
inspector further testified that Mr. Carroll told him that the top part of the guard was torn off
when the plant was at the Henderson Mill. Finally, he testified that Mr. Carroll knew that the top
of the guard was missing but that he and his son stayed away from the area. (Tr. 34).

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   Mr. Carroll testified that the cited conveyor was not being used at the Henderson Mill but

a loader operator backed into the equipment and damaged the guard. (Tr. 110). After the
equipment was transported to Chaffee County, Mr. Carroll built a new guard for the tail pulley
except for a top piece. (Tr. 122). Mr. Carroll did not provide any explanation as to why he did
not construct a top for the guard.

    I find that the Secretary established a violation of section 56.14112(b) because a complete

guard was not securely in place while the conveyor was operating. I also find that the violation
was S&S for the same reasons described above for Citation No. 7923099. The Secretary
established that an injury was reasonably likely and that such an injury would be of a reasonably
serious nature, assuming continued normal mining operations. The area was readily accessible
and it was reasonably likely that someone would slip, trip, or fall into the moving machine parts.

    I also find that the Secretary established that the violation was the result of Hi Valley’s

unwarrantable failure to comply with the safety standard. Mr. Carroll knew that the top of the
guard was missing and that it presented a hazard. Hi Valley argues that, because everyone knew
to stay away from the area when the plant was operating, it’s negligence was low. I reject this
argument for the reasons set forth above. Its failure to replace the top of the guard constitutes a
serious lack of reasonable care that demonstrates aggravated conduct.

   C. Order No. 7923100

   Order No. 7923100 alleges a violation of 30 C.F.R. § 56.12028, as follows:

           The owner-operator of the crushing plant did not do a continuity
           and resistance test of the electrical systems of the plant after setting
           up in this new location, nor did the operator have a ground rod
           driven into the earth to provide a low resistance earth connection.
           These tests shall be conducted immediately after installation,
           modification, or repair. The operator stated that he knew that a
           continuity and resistance test was required upon each move and set
           up. He stated that the last grounding test was good. He also stated
           that sometimes you just have to crush rock and that he did not get
           around to doing the test.

     Inspector Ryan determined that the violation was not S&S, but that it was the result of Hi

Valley’s high negligence. He issued the order under section 104(d)(1) because he believed that
the violation was the result of the operator’s unwarrantable failure. Section 56.12028 provides,
in part, that “[c]ontinuity and resistance of grounding systems shall be tested immediately after
installation, repair, and modification ....” This standard also requires the operator to keep a
record of the required tests. The Secretary proposes a penalty of $400 for this alleged violation.

   Inspector Ryan testified that there were no records showing that the required resistance

and continuity test had been performed after the plant had been moved to Chaffee County. He

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further stated that when he asked Mr. Carroll about the test, he replied that the test had not been
done. (Tr. 42). Inspector Ryan testified that Mr. Carroll "said it was good at the last place he set
up, he had no need to do it [again], he had just moved from there and it was good at the last
operation ... where he had done the test." Id. The inspector also noticed that a grounding rod
was not installed at the diesel generator for the plant. (Tr. 45-46). Ronald Renowden, an
electrical specialist with MSHA, testified that continuity and resistance tests are important in
order to ensure that electrical circuits are grounded. (Tr. 69-70). He stated that grounding wires
and connections can loosen when a crushing plant is moved and set up at a new site. MSHA has
always required that portable plants be tested whenever they are moved. (Tr. 87). He testified
that people have been killed and injured as a result of ungrounded circuits. (Tr. 73).

    Mr. Carroll testified that he did not test the grounding system. (Tr. 123). He said that he

tested the circuits at the Henderson Mill but that he had not gotten around to it at the Chaffee
County site. (Tr. 124). Mr. Carroll testified that the electrical system on the plant is in "top-
notch" shape and that his failure to test did not create a safety hazard. Id. He stated that when he
performed the test to abate the citation, the grounding system was functioning properly. Id.

     I find that the Secretary established a violation of section 56.12028. There is no dispute

that the test was not performed and recorded. I find that the test was required under the safety
standard after the plant was moved to the new location. The Inspector determined that the
violation was not S&S, although he testified that he thought it was serious. (Tr. 44). Although I
agree that a violation of this standard can often create a serious safety hazard, I find that in this
case the violation was not particularly serious. I accept Mr. Carroll’s testimony that the system
passed the continuity and resistance test and that the electrical system was in good shape.

    I find that the Secretary established that the violation was a result of Hi Valley’s

aggravated conduct. Mr. Carroll admitted that he failed to perform the test. He did not offer any
reasons for not doing it except that he did not think it was important. Although the test revealed
that the grounding system was functioning, it was impossible to know that without the required
testing. The test is necessary to make sure that the grounding circuits are functioning properly
after the crusher is moved to a new location. I credit Mr. Renowden’s testimony as to the
importance of this test. He testified that this safety standard is one of MSHA’s most important
electrical regulations because it helps ensure that employees will not be exposed to an electric
shock hazard. (Tr. 69). Hi Valley’s failure to perform this test demonstrates a serious lack of
reasonable care that constitutes aggravated conduct.

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   D. Order No. 7923104

   Order No. 7923104 alleges a violation of 30 C.F.R. § 56.18002(a), as follows:

           The owner-operator of the crushing plant did not have a record of
           the required work place examination. 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 owner stated that he and his son both
           know what is wrong at the plant and stay away from the area when
           in operation, and that he kept records at the last job for TIC at the
           Henderson Mill operation. [Mr. Carroll] knew that records were to
           be kept and that conditions that adversely affect safety need to be
           corrected. The plant has been in operation for at least one month at
           this location.

     Inspector Ryan determined that the violation was not S&S, but that it was the result of Hi

Valley’s high negligence. He issued the order under section 104(d)(1) because he believed that
the violation was the result of the operator’s unwarrantable failure. Section 56.18002(a)
provides, in part, 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.” This standard also requires the operator to promptly initiate action to correct any
hazardous conditions found during the examination. Subsection (b) of the standard requires the
operator to keep a record of the required examinations. The Secretary proposes a penalty of $400
for this alleged violation.

    Inspector Ryan testified that Hi Valley did not have any records of the required work

place examinations. (Tr. 49). He stated that Mr. Carroll told him that he did not need to keep
such records because he and his son knew what was wrong at the plant and they kept away from
those areas when the plant was in operation. (Tr. 49-50; Ex. 5). Inspector Ryan testified that the
guarding citation and order he issued cited conditions that existed for more than one shift. He
stated that these obvious conditions help demonstrate that the required examinations were not
taking place or that the hazardous conditions found during such examinations were not being
corrected. (Tr. 51). He further testified that these examinations are important to detect
hazardous conditions and Hi Valley’s failure to do them constitutes an unwarrantable failure.

     Mr. Carroll testified that Hi Valley’s practice is to not keep this type of record. (Tr. 124).

He stated that he kept records of examinations at the Henderson Mill because TIC, the general
contractor at that site, required them. (Tr. 124-25). Mr. Carroll testified that because he and his
son are the only employees at the plant, they know about any equipment defects or other safety
problems and they fix it. He stated that "writing it down on a piece of paper ... would not make it
any safer for us than not writing it down...." (Tr. 125). Finally, he testified that "I know full well
that it’s a regulation ... [but] I don’t think it applies so much in this case." Id.

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    I find that the Secretary established a violation of section 56.18002. While it appears that

Hi Valley informally has been conducting safety checks from time to time, there is no established
procedure for conducting the examinations or recording the results. (Tr. 126). Mr. Carroll stated
that neither he nor his son "make a walk-around" or "do an inspection." Id. Examinations were
performed at the Henderson Mill because the general contractor and mill operator required such
examinations.

    I find that the violation was of a reasonably serious nature. Examinations are important

because they reveal safety problems before anyone is endangered. Recording the results of the
examinations is important, even at a small mine, so that anyone can look to see what hazards
may exist before equipment is started or energized. For example, on the morning of the
inspection, Mr. Carroll’s son was not at the plant. The son could have observed a safety hazard
near the end of the previous day. He might forget to tell his father and his father could be injured
because he had no knowledge of the condition. If Hi Valley maintained records of examinations,
the son could record the condition which would alert the father in his son’s absence. Although
no system is perfect, a written record of on-shift safety examinations greatly reduces the chances
of serious injury. (See Exs. 23 through 25).

    I also find that the Secretary established that the violation was a result of Hi Valley’s

aggravated conduct. Mr. Carroll admitted that Hi Valley did not comply with this safety
standard. He stated that he knew that such examinations were required and that records of the
examinations were also required. Indeed, he had complied with this regulation at the
Henderson Mill. He believed that the examinations and records were not important at a small
two-man operation. I find that this conduct demonstrates a serious lack of reasonable care that
constitutes aggravated conduct.

                       II. APPROPRIATE CIVIL PENALTIES

     Section 110(i) of the Mine Act sets out six criteria to be considered in determining

appropriate civil penalties. I find that two citations were issued at the plant during the two years
prior to this inspection. (Ex. 1). Hi Valley is a very small operator that worked about 2,000
man-hours annually and employed two people. (Tr. 5). The violations were rapidly abated in
good faith. The penalties assessed in this decision will not have an adverse effect on Hi Valley’s
ability to continue in business. My findings with regard to gravity and negligence are set forth
above. The penalties proposed by the Secretary were specially assessed under 30 C.F.R
§ 100.5. Based on the penalty criteria, I find that the penalties set forth below are appropriate.
The reduction in the penalties is based primarily on the small size of the operator.

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                                      III. ORDER

   Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the

following civil penalties:

   Citation/Order No.                            30 C.F.R. §            Penalty

   WEST 99-190-M

    7923100                                      56.12028                $100.00
    7923104                                      56.18002(a)              200.00
    7923105                                      56.14112(b)              300.00

   WEST 99-304-M

    7923099                                      56.14107(a)              300.00

   Accordingly, the citation and orders contested in these cases are AFFIRMED as set forth

above, and Hi Valley Crushing Inc. is ORDERED TO PAY the Secretary of Labor the sum of
$900.00 within 40 days of the date of this decision. Upon payment of the penalty, these
proceedings are DISMISSED.

                                     Richard W. Manning
                                     Administrative Law Judge

Distribution:

Edward Falkowski, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80202-5716 (Certified Mail)

Mr. John Carroll, Hi Valley Crushing, Inc., P.O. Box 35, Villa Grove, CO 81155-0035
(Certified Mail)

RWM

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