John Richards Construction
John Richards Construction (FMSHRC WEST 99-348-M, WEST 2000-168-M, WEST 2000-470-M): 21 citations resolved with $3,350 penalty
Apply this to your situation
This order from 2001 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
John Richards Construction operated a very small sand and gravel pit with a crushing plant and two employees. MSHA alleged 21 violations involving guarding, mine operations, firefighting equipment, electrical protection, and communications, with proposed penalties totaling $19,073. Judge Richard W. Manning held the operator responsible for violations even when conditions were created by an agent, found that Carl Tanner was acting as an agent while the owner was away, and vacated two citations. The Judge reduced the proposed penalties based mainly on the operator's very small size and assessed $3,350, payable within 90 days, after which the proceedings would be dismissed.
Decision snapshot
- Cited standards: 30 C.F.R. §§ 56.1000, 56.12004, 56.12005, 56.14107(a), 56.14130(g), 56.14132(a), 56.15002, 56.15003, 56.18002(a), 56.18013, 56.4101, 56.4200(a)(1), and 56.9300(a)
- Outcome: Two citations were vacated, the remaining citations and orders were affirmed or modified, and total penalties of $3,350 were assessed.
- Key point: Mine operators remain responsible for conditions created by an agent who has operational safety responsibility, even at a very small operation.
Full text (FMSHRC public release)
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BO ULEVARD #280
DENVER , CO 80204-3582
303-844-3577/FAX 303-844-5268
September 13, 2001
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 99-348-M
Petitioner : A.C. No. 24-02070-05502
:
v. : Docket No. WEST 2000-168-M
: A.C. No. 24-02070-05503
:
JOHN RICHARDS CONSTRUCTION, : Docket No. WEST 2000-470-M
Respondent : A.C. No. 24-02070-05504
:
: Richards Pit
DECISION
Appearances: John Rainwater, Esq., Office of the Solicitor, U.S. Department
of Labor, Denver, Colorado, for Petitioner;
John Richards, John Richards Construction, Seeley Lake, Montana,
for Respondent.
Before: Judge Manning
These cases are before me on three petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), against
John Richards Construction (“Richards Construction”), pursuant to sect ions 105 and 110 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). The
Secretary’s petitions allege 21 violations of the Secretary’s safety standards and propose penalties
totaling $19,073. A hearing in these cases was held in Missoula, Montana.
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Background and Discussion of General Issues Raised by Richards Construction
John Richards owns Richards Construction as a sole proprietor. It operates the Richards
Pit in Missoula County, Montana. The pit includes a crushing plant as well as a sand and gravel
quarry. All of the citations and orders were issued at the crushing plant. John Richards employs
two individuals at the pit. One employee operates the crushing plant and the other operates a
loader to feed the hopper for the plant. Mr. Richards frequently works out of state for another
employer.
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MSHA Inspector Siebert Smith first tried to inspect the pit on February 4, 1999. When he
could not find anyone at the pit on that date, he left the pit and did not conduct an inspection.
Inspector Smith returned to the pit on August 12, 1999. Mr. Richards was not at the pit on that
day because he was working out of state. When Inspector Smith arrived he talked to Mr. Carl
Tanner. When Tanner discovered t hat Smith was an MSHA employee, Tanner told Smith that he
was going to shut the plant down. Tanner walked through the plant to the other side, shut it
down, and left with the other employee. (Tr. 48-50). As they were leaving, Tanner told Smith
that he was not going to participate in the inspection and that he could “[w]rite anything you want
- I’ve seen it all before.” (Tr. 49-50). Smith believes that Tanner talked to Lance Richards,
John’s son, because Lance arrived a short time later.Mr. Richards raised a number of defenses that are applicable to all of the citations andorders in this case. First, he contends that, because there were only two employees at the pit,
each with assigned duties, many of the conditions cited did not pose a hazard. For example,
Richards contends that many of the guarding citations, discussed below, should be vacated
because employees do not walk around the plant while it is operat ing. Mr. Tanner operates the
loader while the other employee operat es the plant. Richards assert s that anytime the plant
operator is cleaning up accumulations or performing maintenance on the plant, he shuts it down.The Federal Mine Safety and Health Review Commission and the courts have uniformlyheld that mine operators are strictly liable for violations of safety and health standards. See, e.g.
Asarco v. FMSHRC, 868 F.2d 1195 (10th Cir. 1989). “[W]hen a violation of a mandatory safety
standard occurs in a mine, the operator is automatically assessed a civil penalty.” Id. at 1197. In
addition, the Secretary is not required to prove t hat a violation creates a safety hazard, unless the
safety standard so provides.The [Mine Act] imposes no general requirement that a violation of MSHA regulations be found to create a safety hazard in order for a valid citation to issue. If conditions existed which violated the regulations, citations [are] proper.
Allied Products, Inc., 666 F.2d 890, 892-93 (5th Cir. 1982)(footnote omitted). The negligence of
the operator and the degree of the hazard created by the violation are taken into consideration in
assessing a civil penalty under section 110(i). 30 U.S.C. § 820(i). Thus, a violation is found and
a penalty is assessed even if the chance of an injury is not very great. In assessing penalties in this
case, I have taken into consideration the fact that Richards Construction is a small business. I
cannot vacate citations or reduce penalties to zero simply because the risk of injury was small.
The Commission interprets safety standards, including the guarding standard, to take into
consideration “ordinary human carelessness.” Thompson Bros. Coal Co., 6 FMSHRC 2094,
2097 (September 1984). The Commission specifically held that the guarding standard must be
interpreted to consider whether there is a “reasonable possibility of contact and injury, including
contact stemming from inadvertent stumbling or falling, momentary inattention, or ordinary
human carelessness.” Id. Human behavior can be erratic and unpredictable. It is conceivable
that someone might attempt to perform minor maintenance or cleaning near an unguarded tail
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pulley without first shutting it down. In such an instance, the employee’s clothing could easily
become entangled in the moving parts and a serious injury could result. Guards are designed to
prevent just such an accident. The fact that no employee has ever been injured by an unguarded
pinch point at this operation is not a defense because there is a history of such injuries at
crushing plants throughout the United States and the Richards Pit could be next. Fatal accidents
have occurred at small operations as a result of inadequately guarded tail pulleys. See Darwin
Stratton & Son, Inc., 22 FMSHRC 1265 (Oct. 2000) (ALJ).
Mr. Richards also argues that Mr. Tanner was responsible for the creation of the cited
conditions because he left Mr. Tanner in charge while he was out of state. For example,
Richards states that many of the guarding citations were issued because Mr. Tanner had allowed
large amounts of material to accumulate around the plant contrary to Richards’ explicit
instructions. The accumulations had the effect of raising the walking surfaces placing them
within seven feet of unguarded pulleys. Richards states that if he had been at the plant, he would
have made sure that accumulations were cleaned up on a regular basis and the pulleys would
have been guarded by location. Richards also raises this defense with respect to the
unwarrantable failure citation and orders.
As a general matter, a mine operator can be held liable for the acts of his agents. An
agent is defined at section 3(e) of the Mine Act as “any person charged with responsibility for
the operation of all or part of a . . . mine or the supervision of miners in a . . . mine.” The
Commission has held that the negligence of an agent of a mine operator must be considered
when determining the operator’s negligence in assessing a civil penalty under section 110(i) of
the Mine Act and when evaluating an unwarrantable failure allegation. Southern Ohio Coal Co.,
4 FMSHRC 1459, 1463-64 (Aug. 1982); Rochester & Pittsburgh Coal Co., 13 FMSHRC 189,
194-97 (Feb. 1991). The issue is whether Mr. Tanner was an agent of Richards Construction.
When deciding whether a miner is an agent of an operator,
the Commission has focused on the miner’s function and not his
job title. It has examined whether the miner’s function involved
responsibilities normally delegated to management personnel and
whether his responsibilities were crucial to the mine’s operation.
It has also considered whether the miner exercised managerial
responsibilities at the time of his negligent conduct.
Martin Marietta Aggregates, 22 FMSHRC 633, 637 (May 2000) (citations omitted). The
conduct of a rank-and-file miner, “may not, absent agency, be imputed to the operator.” Whayne
Supply Co., 19 FMSHRC 447, 454 (Mar. 1997) (emphasis in original).
Mr. Richards’ testimony is somewhat inconsistent. On the one hand, he stated that he
has “been (working) in Arizona since 1987, part years.” (Tr. 492). On the other hand, he
testified that he is usually around during crushing operations. Id. He testified that “this was
really the first time that I’d left [Montana] and left [Tanner] in charge.” (Tr. 491). Apparently,
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Richards had been in Houston for about three weeks at the time of this particular inspection.
(Tr. 437).
Ordinarily, Tanner was not an agent of Richards Construction. Mr. Richards put Tanner
in charge of the pit while he was in Houston, Texas. The question is whether Tanner was an
agent of Richards Construction while Richards was away. Richards argues that he had given his
employees, including Tanner, safety training. For example, he told his employees to always
wear seat belts when operating equipment. (Tr. 491). As discussed below, Inspector Smith
observed Tanner operating a loader without wearing a seat belt. After Mr. Richards returned to
Montana, he requested a health and safety conference with MSHA under 30 C.F.R. § 100.6 to
discuss the citations that Inspector Smith issued. He requested this conference because he
believed that Tanner should have been held responsible for the violations in Richards’ absence.
The conference was held on October 1, 1999, by telephone. Supervisory MSHA Inspector
Wayne Wasson represented the Secretary. Carl Tanner and Lance Richards were also on the
telephone conference. Inspector Wasson testified at the hearing that Mr. Richards told him during
the telephone conference that Tanner was the “superintendent” at the pit at the time of Inspector
Smith’s inspection. (Tr. 350). Several of the citations that were issued by Inspector Smith
involved violations committed by Carl Tanner, including the seat-belt violation. As a
consequence, Inspector Wasson modified these citations to section 104(d)(1) citation and orders.
He made these modifications because he believes that a mine superintendent should be held to a
higher degree of care than an employee who is not a manager. (Tr. 351-52).
At the hearing, Richards testified that Tanner was a very safety conscious individual who
always “followed the directives.” Id. Richards does not understand why he failed to wear a seat
belt. Richards testified that he terminated Tanner from his employment with Richards
Construction as a result of his conduct during the inspection. (Tr. 495). Richards believes that
Tanner should have been cited for this violation and for other similar violations rather than
Richards Construction because Tanner failed to follow the pit’s safety rules. Richards believes
that Tanner “was not looking out for my best interests. . . .” when Richards was away, especially
during the MSHA inspection. (Tr. 519). As a consequence, he argues that Richards
Construction should not be held responsible for Tanner’s actions during the inspection.
Mr. Richards did not clearly set forth Mr. Tanner’s responsibilities at the hearing.
Tanner apparently had the authority to supervise the other employee, take orders for product, run
the plant, and manage the day-to-day operations. It does not appear that Tanner had the
authority to hire or fire employees or to discipline employees. It is clear, however, that Tanner
had responsibility for safety at the pit. It was within his power to make sure that safety rules and
procedures were followed. Tanner was more than a leadman; he “exercised managerial
responsibilities” at the pit in Mr. Richards’ absence. For purposes of the Mine Act, I find that
Mr. Tanner was an agent of Richards Construction when Mr. Richards was out of state. The fact
that Tanner did not follow Mr. Richards’ guidelines does not negate the agent-principal
relationship, but it may affect the degree of negligence attributable to Richards Construction.
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Mr. Richards also asserted that the penalties proposed by MSHA are so high that they
will affect his ability to continue in business. At the close of the hearing I advised Mr. Richards
that this claim is an affirmative defense for which he bears the burden of proof. (Tr. 551-56).
He provided his personal federal tax returns for 1993-1998, which showed business losses for
those years. He also submitted W-2 forms for 1999 and 2000. I advised Mr. Richards that I
would need more detailed financial information in order to consider this issue. By order dated
April 24, 2001, I set forth the specific information that I would need. I enclosed a copy of my
decision on remand in Unique Electric, 21 FMSHRC 91 (Jan. 1999). Mr. Richards did not file a
response to my order by the June 4, 2001, due date.1 Consequently, I have not reduced the
penalties in this case based on the ability to continue in business criterion.
B. Inspection of February 4, 1999
Citation No. 7903871, the only one issued on February 4, 1999, alleges a violation of 30
C.F.R. § 56.1000, because the “owner, operator, or the person in charge of the Richards Pit did
not give notification to the nearest Mine Safety and Health Administration office of the shutdown
of the Richards Pit.” Inspector Smith determined that the violation was not of a significant and
substantial nature (“S&S”) and was the result of Richards Construction’s moderate negligence.
Section 56.1000 provides, in part, that “[W]hen any mine is closed, t he person in charge shall
notify the nearest [MSHA] subdistrict office . . . and indicate whether the closure is temporary or
permanent.”
When Inspector Smith traveled to the pit on February 4, he did not see anyone around.
He tried two different approaches to the pit without success. Smith testified that the pit is
classified as an intermittent operation. Mr. Richards testified that he was out of state on February
4, but that the pit had not been shut down. If a customer wanted to purchase sand, the customer
would contact a Richards Construction employee who would direct him to the pit. (Tr. 416-18).
If the customer was purchasing only one truckload, he might load the sand himself from the
stockpile, otherwise one of the pit employees would load the customer’s trucks. Because it was
winter, the crusher had not operated since about December 1998. Id. Nevertheless, if a customer
wanted to purchase a large amount of sand and the weather was not too severe, Richards
Construction would operate its crusher to fill the order. The sand was primarily used to sand
subdivision roads in inclement weather.
Inspector Smith issued this citation solely because he did not see anyone at the pit on
February 4. Intermittent operations do not mine and crush every day. The inspector testified that
he did believe t hat an operator of an intermittent pit and crusher would be required to notify
MSHA every week whether it was planning on being open. (Tr. 35). The standard is designed to
1
On July 18, 2001, Mr. Richards filed a mot ion for a 90-day extension of time to respond
to my order and to file a brief in these cases. The Secretary opposed the motion. By order dated
July 30, 2001, I denied Mr. Richards’ motion for an extension of time. At Richards’ request, I
placed his tax records under seal.
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cover situations where an operation closes permanently or is closing for some definite period of
time, such as November through March. In the case of this pit, it remained open all winter, but it
had employees present only when there was a demand for its products. If Richards Construction
had notified MSHA that it was closed at the end of December 1998, the standard would have
required it to notify MSHA every time a customer called for sand. I do not read section 56.1000
imposing such a requirement on int ermittent operations. Consequent ly, Citation No. 7903871 is
vacated.
C. Guarding Citations
Citation No. 7904240 alleges a violation of section 56.14107(a), because no guard was
installed on the v-belt drive unit for the discharge conveyor under the kinetic crusher. The citation
states that the “v-belt drive unit was locat ed approximately 56 inches from the ground level and
could be contacted by employees at the site.” Inspector Smith determined that the violation was
S&S and was the result of Richards Construction’s moderate negligence. 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 $399 for this alleged violation.
There is no dispute that the cited V-belt drive was not guarded. (Ex. P-3, p.1 bottom
photo). Inspector Smith testified that there was no guarding on this v-belt drive and estimated
that the pinch point was about 56 inches from the ground level. (Tr. 53, 59). There was an
accumulation of spilled material at that location at the time of the inspection. (Tr. 59-61). He
determined that Richards Construction’s negligence was moderate because it received guarding
citations in the past. (Tr. 54-55). He also determined that the violation was S&S because if the
drive remained unguarded it was reasonably likely that someone would sustain an injury of a
reasonably serious nature. (Tr. 55, 67-70).
Mr. Richards testified that the conveyor was installed in 1993 and had been inspected on
at least one previous inspection. (Tr. 426). No guarding citations have ever been issued for this
v-belt drive. He further stated that the distance from the ground to the tail pulley is about ten
feet. Id. Richards testified that the reason Inspector Smith measured a distance of 56 inches was
because he was standing on spilled material that had accumulated. (Tr. 431-32). Richards also
testified that the violation should not have been designated as S&S because “you have to contort
yourself to get anywhere near it.” (Tr. 434). Employees would not walk under this conveyor
when it was running because large rocks fall from the conveyor, as evidenced by the
accumulation of spilled material. Id. He stated that “no one with any . . . common sense would
get in that area where those rocks are falling.” (Tr. 434-35). Richards also testified that he
instructed his employees to keep the area under the conveyor clean and to remove spilled
material. (Tr. 436). Mr. Richards was not in Montana at the time of this inspection, so he
believes that he should not be held negligent for the failure of Tanner to make sure that the area
was clean of spilled material.
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There can be no dispute that at the time of the inspection, the v-belt drive was not
guarded and was a little more than 4.5 feet above the ground level. If accumulations in the area
had been cleaned out, the v-belt drive would have been higher off the ground. It may well have
been more than seven feet from the ground during previous MSHA inspections. (30 C.F.R.
§ 56.14107(b)). I find that the area under the v-belt drive was a walking surface. Employees
could walk through the area and Inspector Smith observed Mr. Tanner walking under operating
conveyors on the date of the inspection. (Tr. 49, 68, 260, 262).
I find that the Secretary established a violation of the safety standard. I also find 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).
In this instance, the exposed moving parts were about 4.5 feet above the walking surface.
A measure of danger to safety was present that was contributed to by the violation. Assuming
continued mining operations, it was reasonably likely that someone would come in contact with
the moving machine parts that were about 4.5 feet above the walking surface. The exposed
moving parts were close to the walking surface because the agent of Richards Construction
allowed a significant quantity of rock to accumulate in the area. The fact that Richards would
have kept the accumulations cleaned up does not negate the fact that employees were exposed to
moving machine parts. A person’s clothing can easily get caught in moving machine parts and
pull the individual into the moving parts causing an injury. Richards testified that no employee
“with common sense” would walk under a moving conveyor because he could get hit by falling
rocks, yet Inspector Smith observed Tanner walking under operating conveyors. I find that the
Secretary also established that any injury would be of a reasonably serious nature.
The Secretary established that the mine operator’s negligence was moderate. The
negligence of Mr. Tanner, Richards Construction’s agent, is attributable to Richards
Construction. A penalty of $200 is appropriate.
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Citation No. 7904241 alleges a violat ion of section 56.14107(a) because the guard on the
tail pulley for the return conveyor to the Telesmith plant “did not extend a [sufficient] distance to
cover the moving parts of the tail pulley.” It further states that the tail pulley was about 24 inches
above the ground and could be contacted by employees at the site. Inspector Smith determined
that the violation was S&S and that it was the result of Richards Construction’s moderate
negligence. The Secretary proposed a penalty of $399 for this alleged violation.
Inspector Smith testified there was a guard present at this location but it did no t extend all
the way back to protect employees from coming into contact with the self-cleaning tail pulley.
(Tr. 76; Ex. P-3, p. 2 top photo). The open area was about 24 inches above the ground. (Tr.
77). Inspector Smith determined that Richards Construction was moderately negligent with
respect to this citation. He determined that the violation was S&S because if someone were to
trip and fall in the area adjacent to the opening around the guard, he could come in contact with
the pinch points. (Tr. 78, 89).
Richards testified that during 1998, a different MSHA inspector issued a citation at the
same location and the guard that was installed to abate the previous citation was the guard that
Inspector Smith considered to be inadequate. (Tr. 441-42). As a consequence, Richards believes
that he was not negligent. (Tr. 445). Richards also testified that, in order to contact a pinch
point, an employee’s entire arm would have to go through the opening. (Tr. 442). Given that the
opening was very narrow, he believes that such an event was highly unlikely. (Tr. 442-44).
I find that the Secretary established a violation but did not establish that it was S&S. The
opening that was not covered by the guard was quite small. Inspector Smith did not measure the
opening, but the photograph shows a small opening. Although the opening created a discrete
safety hazard, it is highly unlikely that anyone would trip and fall next to the opening and then
inadvertently have his hand enter the opening. The moving machine parts were well inside the
opening. Although such an event could occur, it was not reasonably likely to happen. The
gravity is low.
I also find that Richards Construction was not negligent. Mr. Richards testified that
another MSHA inspector issued a citation at the same tail pulley a year earlier for a violation of
section 56.14107(a). The guard that Inspector Smith found to be inadequate was installed to
abate the previous citation. I credit Mr. Richard’s testimony on this issue. The pit received seven
guarding citations during the MSHA inspection of August 6, 1998. (Ex. P-6). This fact does not
negate this violation because equitable estoppel does not apply to the Secretary in Mine Act
proceedings. King Knob Coal Co., 3 FMSHRC 1417, 1421-22 (June 1981). It is within
MSHA’s authority to determine that the tail pulley was not adequately guarded on August 12,
1999. Nevertheless, the fact that another MSHA inspector determined that the guard cited by
Inspector Smith met the requirements of the safety standard significantly lowers the level of
negligence that should be imputed to Richards Construction. It is unfair to cite a mine operator
for a violation of a safety standard and then cite it again for a violation of the same standard at the
same location with a moderate negligence finding. If the first MSHA inspector had required that
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the violation be properly abated, Richards Construction would not have received the second
citation. Consequently, I find that a nominal penalty of $10 is appropriate.
Citation No. 7904242 alleges a violat ion of section 56.14107(a) because the guard on the
fin-type tail pulley of the discharge conveyor under the Pioneer crusher “did not extend a
[sufficient] distance to cover the moving parts” on the tail pulley. The citation also st ates that the
tail pulley was about 30 inches above the ground and could be contacted by employees at the site.
Inspector Smith determined that the violation was S&S and that it was the result of Richards
Construction’s moderate negligence. The Secretary proposes a penalty of $399 for this alleged
violation.
Inspector Smith testified no guard was provided on the tail pulley. (Tr. 93; Ex. P-3, p. 2
bottom photo). The lower pulley was partially guarded but the top pulley was not. It was 30
inches from the ground. For the reasons set forth with respect to the previous citations, Inspector
Smith determined that the violation was S&S and the result of Richards Construction’s moderate
negligence. (Tr. 94-95). An employee could trip and fall in the immediate area and get his hand
caught in the pinch point of the self-cleaning tail pulley. (Tr. 104).
Mr. Richards testified that normally the tail pulley is about four feet above the ground but
that material had been allowed to accumulate in the area. (Tr. 448). He also stated that other
sides of this tail pulley had been guarded by Richards Construction following a previous MSHA
inspection. Richards believes that it was highly unlikely that anyone would walk close to the cited
area and even more unlikely that he would trip and fall. (Tr. 448-49). He believes that if there
was a violat ion, it was neither serious nor S&S. The MSHA inspector who conducted the
previous inspection did not designate guarding violations as S&S. (Tr. 450; Ex. P-6). In
addition, Richards believes that there was no negligence associated with this condition because
the guards that were present were installed to abate a citation issued during the previous MSHA
inspection. (Tr. 452). He believes that he should not be cited twice for the same condition and
then assessed higher penalties for moderate negligence.
I find that the Secretary established a violation. I also find that the violation was S&S.
The opening that was not covered by the guard was fairly substantial in size and it is reasonably
likely that someone could be seriously injured if this condition were not corrected. The fact that
the MSHA inspector who issued a citation at t his same location a year earlier considered the
violation to be non-S&S is not binding on the Secretary or the Commission.
For the reasons set forth with respect to the previous citation, I find that Richards
Construction was not negligent. I credit Richards’ testimony that the other guards on this tail
pulley were installed to abate another MSHA inspector’s citation. If the first MSHA inspector
had required that the violation be properly abated, Richards Construction would not have received
the second citation. I assess a penalty of $50 for this violation.
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Citation No. 7904246 alleges a violation of section 56.14107(a) because a guard was not
installed on the head pulley and on the v-belt drive unit on the discharge conveyor under the El
Jay screen. The citation states that the head pulley and v-belt drive were about 56 inches above
the ground and could be contacted by employees at the site. Inspector Smith determined that the
violation was S&S and that it was the result of Richards Construction’s moderate negligence.
The Secretary proposes a penalty of $399 for this alleged violation.
Inspector Smith testified that the unguarded v-belt drive was under the decking on the El
Jay screen. (Tr. 133). There was no guarding at this head pulley and v-belt drive. (Tr. 134; Ex.
P-3, p. 4 bottom phot o). He determined that the unguarded moving parts were 56 inches abo ve
the ground in an area that could be accessed by employees. He determined that the violation was
S&S and that Richards Construction’s negligence was moderate based on the same factors that he
considered with respect to the other guarding violations. (Tr. 135-35).
Mr. Richards testified that the cited head pulley and v-belt drive would normally be ten
feet above the walking surface. (Tr. 459, 461). Because his employees had allowed material to
accumulate under the pulley and drive, the distance was considerably less. He testified that
material can accumulate rather quickly in that area. (Tr. 460-61). Richards further testified that
employees never walk under the cited drive pulley because of the falling rock. (Tr. 462-63). He
believes that the condition was not S&S. He also contends that he was not negligent. He points
to the fact that there has not been a serious injury at his operation in 30 years. (Tr. 464).
The condition cited is similar to the condition in Citation No. 7904240. Because Richards
Construction had permitted material to accumulate in the area, the moving machine parts were
about 4.5 feet above the walking surface. Normally the moving parts were protected by location.
For the same reasons discussed above with respect to Citation No . 7904240, I find that the
Secretary established an S&S violation and that Richards Construction’s negligence was
moderate. A penalty of $200 is appropriate.
Citation No. 7904247 alleges a violation of section 56.14107(a) because a guard was not
provided and installed to “extend a [sufficient] distance to cover the moving parts of the fin-type
tail pulley” on the number 3061 conveyor. The citation states that the tail pulley was about 33
inches from the ground and could be contacted by employees at the site. Inspector Smith
determined that t he violation was S&S and that it was the result of Richards Construction’s
moderate negligence. The Secretary proposes a penalty of $399 for this alleged violation.
Inspector Smith testified that the existing guard o n the conveyor did not cover all of the
moving parts. (Tr. 141). He believed that an additional guard had been present but had been
removed. Small openings were present as well as a protruding shaft for the pulley. (Tr. 142; Ex.
P-3, p. 5 top photo). For the reasons discussed above, the inspector determined that the violation
was S&S and that the operator’s negligence was moderate. He testified that the openings were
large enough to pose a hazard. He was concerned that if someone were to trip and fall while
walking by the unguarded conveyor, he could become entangled in the moving parts. (Tr. 160).
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Mr. Richards testified that the end of the conveyor was sitting on a block that was six feet
long, two feet high, and about two feet deep. (Tr. 465). He stated that, as a consequence, an
employee could not get close to the moving parts. If an employee were to trip and fall in that
area, he believes that it would be highly unlikely that he would become entangled in the moving
parts. (Tr. 466-68). As with some of the other guarding citations, Richards testified that he had
been issued a citation for this conveyor in 1998 and the guarding that was present was adequate
to abate the previous citation. Id. I credit Richards’ testimony.
The condition cited in this citation is quite similar to the violation in Citation No.
- For the same reasons, I find that the Secretary established a violation; the violation was
not S&S; the gravity was low; and Richards Construction was not negligent. A penalty of $10 is
assessed.Citation No. 7904248 alleges a violation of section 56.14107(a) because a guard was notinstalled on the back side of the drum-type tail pulley on the number 157 conveyor. The citation
states that the tail pulley was about 33 inches abo ve the ground and could be contacted by
employees at the site. Inspector Smith determined that the violation was S&S and that it was the
result of Richards Construction’s moderate negligence. The Secretary proposes a penalty of $399
for this alleged violation.Inspector Smith testified that a number of moving parts presented a hazard at this locationincluding a scraper bar across the top of the belt and the tail pulley. (Tr. 163). No guard was
present on the front and top of the tail pulley. (Tr. 165; Ex. P-3, p. 5 bottom photo). There was
a guard on the right side, but the guard on the left side had been pulled back exposing the moving
parts. Id. As with the previous citations, Inspector Smith believes that someone could become
entangled in the moving parts if he were in the area.Mr. Richards testified that a guard had been present before he left Montana. (Tr. 470).He stated that he became furious when he discovered that the guard had been removed. He
believes that the condition should be characterized as non-S&S and he also believes that his
negligence was very low. (Tr. 470-71).I find that the Secretary established an S&S violation. This violation created a veryserious safety hazard. I also find that Richards Construction’s negligence was moderate. A
penalty of $250 is appropriate because of the serious nature of the violation.Citation No. 7904249 alleges a violation of section 56.14107(a) because a guard was notinstalled on the fin-type tail pulley on the conveyor under the pro-screen. The citation states that
the tail pulley was about 26 inches above t he ground and could be contacted by employees at the
site. Inspector Smith determined that the violation was S&S and that it was the result of Richards
Construction’s moderate negligence. The Secretary proposes a penalty of $399 for this alleged
violation.1055
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Inspector Smith t estified that there was no guard present on the back side of the self-
cleaning tail pulley. (Tr. 184). The fins are visible in the photograph. (Ex. P-3, p. 6 top photo).
The inspector believes that an employee could be seriously injured if he fell in the area and came
in contact with the unguarded moving parts. (Tr. 186). For the reasons stated above, he
determined that the violation was S&S and was the result of Richards Construction’s moderate
negligence. (Tr. 187). There was spilled material in the area. (Tr. 196).
Mr. Richards stated that an employee would “have to crawl” to get close to the tail pulley
because the Fab Tec screen is on top of the conveyor. (Tr. 472). He also testified that this tail
pulley had been fully guarded but his employees removed part of the guard. (Tr. 473). Richards
stated that he is angry because his employees “know better, that’s what makes me mad.” (Tr.
473). Because the tail pulley was immediately below a screen, Richards believes that it was highly
unlikely that anyone would be injured by the condition. He stated that an injury was especially
unlikely because he has two employees not hundreds. (Tr. 474). He also believes that the
Secretary failed to show that his negligence was moderate. (Tr. 479).
I find that the Secretary established an S&S violation. The fins on the self-cleaning tail
pulley were exposed presenting a serious safety hazard. Mr. Richards believes that the hazard
was minimal because the exposed moving parts were immediately below a screen. While this may
have lessened the likelihood of an injury to some extent, I find that an injury was reasonably likely.
If someone were to st umble and fall in the area, his hands or clothing could become entangled in
the moving parts. I also find that Richards Construction’s negligence was moderate because its
employees removed the guards that had previously been installed. A penalty of $200 is
appropriate.
Citation No. 79804251 alleges a violation of section 56.14107(a) because a guard was not
installed on the fin-type tail pulley on t he Fab Tec feed conveyor at the main feed hopper. The
citation states that the tail pulley was about 12 inches abo ve the ground and could be contacted by
employees at the site. Inspector Smith determined that the violation was S&S and that it was the
result of Richards Construction’s moderate negligence. The Secretary proposes a penalty of $399
for this alleged violation.
Inspector Smith stated that this citation was issued because there was no guard on the
self-cleaning tail pulley on the feed conveyor under the main feed hopper for the plant. (Tr.
211-12; Ex. P-3, p. 7 top photo). He stated that an employee could walk along the side of this
conveyor. (Tr. 214). Smith testified that he designated the condition as S&S and the negligence
as moderate for the same reasons discussed above. (Tr. 214-15).
Mr. Richards testified that no employee would walk near the conveyor while the plant
was operating because large rocks constantly fall off the sides of the hopper from the grizzly on
top of the hopper. (Tr. 215-16, 482-4). Inspector Smith testified that he would not walk
through that area while the plant was operating. Richards believes that the conditions did not
present a violation, much less an S&S violation.
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Citation No. 7904252 alleges a violation of section 56.14107(a) because a guard was not
installed on the head pulley and on tail pulleys for the small discharge conveyer under the same
feed hopper at the crushing plant. The citation states that the pulleys were about 40 inches above
the ground and could be contacted by employees at the site. Inspector Smith determined that the
violation was S&S and that it was the result of Richards Construction’s moderate negligence.
The Secretary proposes a penalty of $399 for this alleged violation.
The condition cited in this citation is immediately above the condition cited in the previous
citation. (Tr. 223; Ex. P-3, p. 7 bottom phot o). The small discharge conveyor was under the
main feed hopper for the plant. The inspector’s testimony is the same for both citations. (Tr.
224-225). Mr. Richards’ testimony was also the same.
These two citations present a close issue. Were the moving machine parts within seven
feet of a walking or working surface? The cited areas were at the back of the main feed hopper.
The land falls away quickly at the back as illustrated in Ex. P-3, p. 7. I credit the testimony of
Mr. Richards that employees do not walk behind the feed hopper while it is operating because
large rocks fall from the grizzly. Inspector Smith testified that he would not walk in this area.
Nevertheless, I find that it is possible that an employee might walk near those moving parts that
are pictured on the left side of the photographs. There is a wide flat area there that can be
classified as a “walking surface.” The rocks in the area create a tripping hazard. Consequently,
I find that the Secretary established these violations. I find that the violations are not S&S
because it is not reasonably likely that anyone would be exposed to the hazard assuming
continued operations. It is not likely that anyone would walk in the area when the hopper was
operating. The gravity is low. I also find that Richards Construction’s negligence was low.
Reasonable people could differ on whether guards were required at these locations under the
safety standard. A penalty of $25 for each citation is appropriate.
D. Unwarrantable Citation and Orders
Citation No. 7904235 alleges a violation of section 56.14130(g) because Mr. Tanner was
operating a front-end loader on an elevated ramp at the pit without wearing a seat belt. Inspector
Smith determined that the violation was S&S and that it was the result of Richards Construction’s
moderate negligence. After reviewing the facts at the safety and health conference, MSHA
Inspector Wasson determined that citation should be modified to a section 104(d)(1) citation with
high negligence. He made this change because the individual operating the loader was the “mine
superintendent.” The standard provides, in part, that “[s]eat belts shall be worn by the equipment
operator.” The Secretary proposes a penalty of $1,800 for this alleged violation.
Inspector Smith testified that when he first arrived at the pit, he observed Mr. Tanner
operating the loader on the ramp to the hopper for t he crusher. When Smith flagged him down,
Tanner was not wearing the safety belt that was installed on the loader. (Tr. 240). When the
inspector asked Tanner why he was not wearing it, Tanner replied that he was “just not wearing
it.” Id. Smith testified that it took Tanner quite a while to pull it out from under the seat cushion.
Inspector Smith determined that the violation was S&S because Tanner was using the loader on
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the elevated ramp and the ramp was not equipped with a berm. Smith was concerned about a
rollover accident on the ramp which was about six feet off the ground at its highest point. (Tr.
242; Ex. P-3, p.1 top photo). He said that it was reasonably likely that a loader operator would
roll his equipment over on the ramp and sustain a serious injury. (Tr. 252-53).
Mr. Richards testified that the loader was equipped with seatbelts. He stated that he
instructed all equipment operators to wear seatbelts at all times. (Tr. 491). Richards testified that
Tanner followed this rule when Richards was at the property. He admitted that Richards
Construction received seatbelt citations in the past. Richards does not believe that the citation
should have been designated as S&S or that a serious injury was reasonably likely. (Tr. 494). He
also testified that the previous citation was designated as non-S&S. Richards also testified that
the ramp was only about 50 to 55 inches high (4.5 feet). (Tr. 510-11). He believes that the
inspector included some horizontal distance when he attempted to measure the height. Richards
also maintains that his negligence was not high. He testified that Tanner wore his seatbelt when
Richards was at the pit. (Tr. 495). Richards stated that he instructed Tanner to wear a seat belt
and that his failure to do so should not be attributed to Richards Construction.
I find that the Secretary established a violation and that the violation was S&S. Based on
the photograph, I credit Mr. Richards’ testimony that the ramp was closer to 4.5 feet high t han 6
feet high. Nevertheless, the violation created a serious safety hazard. It is reasonably likely that
someone operating a loader without wearing a seat belt will be injured and that the injury will be
reasonably serious. See Lakeview Rock Products, 17 FMSHRC 83, 87 (Jan. 1995)(ALJ). I reject
the inspector’s testimony that a fatal injury was reasonably likely, but that does not negate my
S&S finding.
The key issue is whether the violation was caused by an unwarrantable failure of Richards
Construction to comply with the safety standard. The Commission determined that unwarrantable
failure is aggravated conduct constituting more that 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). Whether conduct is “aggravated” in the context of unwarrantable failure is determined by
looking at all the facts and circumstances of each case to see if any aggravating factors exist, such
as: the extent of the violative condition; the length of time it has existed; t he operator’s effo rts in
abating the violative condition; whether the operator has been placed on notice that greater efforts
are necessary for compliance; the operat or’s knowledge of the existence of the violation; and
whether the violation is obvious or poses a high degree of danger. See Consolidation Coal Co.,
23 FMSHRC 588, 593 (June 2001). These factors need to “be viewed in the context of the
factual circumstances of a particular case, and some factors may be irrelevant to a particular
factual scenario.” Id. These factors must be examined to determine if “an actor’s conduct is
aggravated, or whether the level of the actor’s negligence should be mitigated.” Id.
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Because Mr. Richards appointed Mr. Tanner as his agent in his absence, the negligence of
Tanner is attributable to Richards Construction. During this inspection, Mr. Tanner stood in
Mr. Richards’ shoes, so to speak. Although this result may seem harsh, it has the effect of
requiring mine operators to take every reasonable step to ensure that it appoints agents that are
responsible and competent to manage the operation in a safe manner. In the case of mine
operators that are corporations, the operator always depends on the acts of its agents. In this case
the operator is a sole proprietor, Mr. Richards. When Mr. Richards is present, he directly
manages the pit without any agents. On those occasions when he does rely on agent, Richards
Construction is liable for the agent’s negligent acts.
I find that this violation was the caused by the unwarrantable failure of the operator to
comply with the safety standard. Richards Construction received a citation for a violat ion of this
safety standard on August 6, 1998. (Ex. P-6). Consequently, Mr. Richards was aware that he
needed to take further steps to enforce this safety standard at the pit. The operator’s agent was
well aware of the violation because he was the individual operating the loader. It appears that this
was not the first time that Tanner operated the loader without wearing a seat belt because the belt
was under the seat cushion between the back and the cushion. The violation was also obvious.
Although I recognize that Mr. Richards was not at the pit to enforce his safety rules, his agent
violated the safety standard and was aware that he was doing so. A penalty of $500 is
appropriate for this violation.
Order No. 7904236 alleges a violation of section 56.15002 because Mr. Tanner was not
wearing a protective hat at the pit. The inspector observed him walking through the crushing
plant. Inspector Smith determined that the violation was S&S and that it was the result of
Richards Construction’s moderate negligence. After reviewing the facts at the safety and health
conference, MSHA Inspector Wasson modified the original citation to a section 104(d)(1) order
with high negligence. The standard provides, in part, that “[a]ll persons shall wear suitable hard
hats when in or around a mine or plant where falling objects may create a hazard.” The Secretary
proposes a penalty of $1,400 for this alleged violation.
Inspector Smith testified that when Tanner told him that he was go ing to shut the plant
down, he walked under two moving conveyors at the pit instead of walking on the roads to reach
the other employee. (Tr. 260-61). Tanner was not wearing a hard hat at the time. Inspector
Smith does not know what was on these particular conveyors at the time Tanner walked under
them. (Tr. 265). He stated that if it was sand, a serious hazard would not be presented. When
Tanner left the pit, he had his hard hat in his truck. (Tr. 273).
Mr. Richards testified that the conveyors that Tanner walked under carried three-eighths-
inch sand. (Tr. 498). He stated that this material could not have injured Tanner even though he
was not wearing his hard hat. Mr. Richards also testified that he cannot understand why Tanner
walked through the plant given its configuration and the location of the other employee. (Tr. 499;
Ex. R-5). He stated that Tanner would have gone out of way to do so and such action does not
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make any sense. Mr. Richards stated that there was no likelihood of an injury in this case. (Tr.
500-01).
I find that the Secretary established a violation. As discussed above with respect to the
guarding citations, the Commission interprets safet y standards taking into consideration the
unpredictable nature of human conduct. There are many areas at the crushing plant where falling
objects may create a hazard. Although the conveyors that Smith saw Tanner walk under may
have carried only sand, Tanner’s actions indicate that he is not hesitant to walk in and around the
plant without a hard hat. Given his behavior, the Secretary established a violation. I find,
however, that the Secretary did not establish that the violation was S&S. Tanner walked through
the plant in a fit of anger. I credit the testimony of Richards that Tanner did not walk under
conveyors that carry large rocks. There is insufficient evidence to establish that it was reasonably
likely that the hazard contributed to by the violation will result in an injury of a reasonably
serious nature. It is impossible to ascertain whether Tanner’s actions were unusual or
commonplace. Although there is sufficient evidence to establish a violation, I cannot determine
that the violation was S&S. The gravity was moderate.
I find that the Secretary established that this violation was caused by the unwarrantable
failure of the operator to comply with the safety standard. The violation was obvious and it was
committed by the agent that Richards Construction had put in charge of the pit. This violation
demonstrated a serious lack of reasonable care on the part of Mr. Tanner. A penalty of $300 is
appropriate.
Order No. 7904237 alleges a violation of section 56.15003 because Mr. Tanner was not
wearing protective footwear at the pit. The inspector observed him walking through the crushing
plant. Inspector Smith determined that the violation was S&S and that it was the result of
Richards Construction’s moderate negligence. After reviewing the facts at the safety and health
conference, MSHA Inspector Wasson modified the original citation to a section 104(d)(1) order
with high negligence. The standard provides, in part, that “[a]ll persons shall wear suitable
protective footwear when in or around an area of a mine or plant where a hazard exists which
could cause an injury to feet.” The Secretary proposes a penalty of $2,000 for this alleged
violation.
Inspector Smith testified that Tanner was wearing tennis shoes at the pit. (Tr. 291).
Smith was concerned that if an object were to fall and hit his foot, he could suffer a serious injury.
The inspector was primarily concerned about falling rocks. (Tr. 292). John Richards testified
that it was highly unlikely that a large rock would fall on Tanner’s foot. (Tr. 500). He also
testified that Richards Construction was not negligent. (Tr. 501).
I find that the Secretary established a violation. Tanner was observed walking through the
plant wearing tennis shoes. There were hazards present that could have caused injury to his feet.
I also find that the violation is S&S. In analyzing the previous violation, I took into consideration
the fact that Tanner might have inadvertently left his hard hat in the loader when he walked
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through the crushing plant. In this instance I cannot reach such a conclusion. Had Inspector
Smith not shown up at the pit, it is foreseeable that Tanner would have worn his tennis shoes all
day. Numerous hazards exist at a crushing plant that can cause serious injury to an employee’s
feet. The evidence establishes that it was reasonably likely that the hazard contributed to by the
violation would have resulted in an injury of a reasonably serious nature, assuming continuing
operations at the pit.
I also find that the Secretary established that this violation was caused by the
unwarrantable failure of the operator to comply with the safety standard. The violation was quite
obvious and it was committed by the agent chosen by Mr. Richards to run the pit in his absence.
This violation demonstrated more than a serious lack of reasonable care on the part of Tanner. A
penalty of $500 is appropriate.
Order No. 7904238 alleges a violation of section 56.14132(a) because the backup alarm
on the loader Mr. Tanner was operating was not working. Inspector Smith determined that the
violation was S&S and that it was the result of Richards Construction’s moderate negligence.
After reviewing the facts at the safety and health conference, MSHA Inspector Wasson modified
the original citation to a section 104(d)(1) order with high negligence. The standard provides, in
part, that “audible warning devices provided on self-propelled mobile equipment shall be
maintained in functional condition.” The Secretary proposes a penalty of $2,500 for this alleged
violation.
The inspector testified that he observed the loader back up and upon further inspection
discovered that there was a broken wire on the alarm. (Tr. 293). Smith also observed a truck
driver standing “in the area where the truck was backing up.” (Tr. 294). He believes that it was
reasonably likely that someone would be killed or injured as a result of this violation.
Mr. Richards testified that the broken wire was immediately repaired. (Tr. 503). He stated
that although the truck drivers do get out of their vehicles to stretch their legs, they do not get in
the way of the loader. He further testified that when a person regularly works around back- up
alarms, he no longer hears them. He believes that backup alarms do little to prevent accidents.
(Tr. 504). He stated that an accident was not reasonably likely. Richards does not know when
the wire broke and stated that it could have occurred that morning. The backup alarm functioned
properly in the past.
I find that the Secretary established an S&S violation. There is no dispute that the back-
up alarm was not working. Although it is possible for people to get used to the sound of backup
alarms, there is little dispute that they help prevent accidents. Hearing a backup alarm as back-
ground noise is quite different from hearing one right behind you. Assuming continued mining
operations, it was reasonably likely that the violation would contribute to an injury of a reasonably
serious nature.
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Whether this violation was the result of the operator’s unwarrantable failure is a closer
question. I find that this violation does not meet the unwarrantable failure criteria established by
the Commission. The record does not reveal how long the condition existed. It is also not clear
that the operator’s agent knew about the violation, even though he was operating the loader. He
may simply not have noticed, an indication of ordinary negligence. The record reveals that
Richards Construction was cited for this safety standard in the past. (Ex. P-6). I find that the
Secretary did not establish that Richards Construction was engaged in aggravated conduct
constituting more than ordinary negligence. A penalty of $200 is appropriate.
Order No. 7904239 alleges a violation of section 56.9300(a) because a berm was not
installed on the outer edge of the elevated ramp at the hopper. Inspector Smith determined that
the violation was S&S and that it was the result of Richards Construction’s moderate negligence.
After reviewing the facts at the safety and health conference, MSHA Inspector Wasson modified
the original citation to a section 104(d)(1) order with high negligence. The standard provides, in
part, that “[b]erms or guardrails shall be provided and maintained on the banks of roadways where
a drop-off exists of sufficient grade or depth to cause a vehicle to overturn or endanger persons in
equipment.” The Secretary proposes a penalty of $3,000 for this alleged violation.
Smith testified that there was no berm present on the right side of the ramp to the main
feed hopper for the plant. (Tr. 295; Ex. P-3, p. 1 top photo). He measured the height of the
ramp to be about 72 inches at the highest point. (Tr. 242, 541). He testified that it was
reasonably likely that the loader operator would run the loader off the ramp because no berm was
present and would seriously injure himself, especially since he was not wearing a seat belt. (Tr.
297).
Mr. Richards testified that Smith’s measurement of the ramp was inaccurate. (Tr. 507-11;
Ex. R-6). He believes that the ramp was about 4 to 4.5 feet above the surrounding land at its
highest point. Id. Richards also testified that the ramp is about 55 feet wide; the loader is 12 feet
wide; and the feed hopper is 14 feet wide. (Tr. 512-13). In addition, the ramp is about 25 feet
long and the loader is about 35 feet long. Id. Richards testified that given these dimensions, it is
highly unlikely that the loader operator would go off the edge of the ramp. First, the ramp is
more than four times as wide as the loader so it is not likely that the operat or would be near the
edge. Second, when the loader is up on the ramp dumping material into the hopper, its rear
wheels are not on the ramp. Given these facts, Mr. Richards believes that an accident was highly
unlikely.
Mr. Richards also testified that MSHA inspected this ramp in the previous August and
issued a citation because the berm on the left side of the ramp was not high enough. (Tr. 514; Ex.
P-6). Richards states he was not negligent with respect to this citation because an MSHA
inspector previously inspected this ramp and did not believe that the area cited in this case
required a berm. He testified that the ramp had not changed in the intervening year. Id.
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I find that the Secretary established a violation. The Secretary established that the drop-
off on the right side of the ramp was of sufficient grade or depth to cause a vehicle to overturn or
endanger persons in equipment. As stated above, the fact that another inspector did not write a
citation for this condition does not negate the violation. In general, it is reasonably likely that a
drop-off on the side of a ramp to a feed hopper would contribute to an injury of a reasonably
serious nature. Given the facts that Mr. Richards presented, I find that the Secretary did not
establish an S&S violation. I credit the dimensions that Mr. Richards introduced at the hearing.
The ramp was very wide relative to the size of the loader. The ramp was quite short relative to
the length of the loader. The hopper was near the center of the ramp. The Secretary did not meet
the third element of the Commission’s Mathies test. It was not reasonably likely that the loader
operator will accidentally run off the edge of the ramp. Although such an event is possible, it is
not reasonably likely. The gravity is moderate.
I also find that Richards Construction did not engage in aggravated conduct constituting
more than ordinary negligence. Although the condition had existed for a long period of time, an
MSHA inspector observed the condition the previous August and did not issue a citation. The
previous inspector issued a non-S&S citation because the berm on the opposite side of the ramp
was not high enough. (Ex. P-6). Richards Construction was not put on notice that greater efforts
are necessary for compliance. If anything, the previous MSHA inspector lulled Mr. Richards into
believing that a berm was not required on the right side of the ramp. I delete the unwarrantable
failure designation from this order and hold that the operator’s negligence was quite low. A
penalty of $50 is appropriate.
Order No. 7904245 alleges a violation of section 56.12005 because an unbridged electrical
cord extended across a roadway at the pit. The cord provided power to a radio. Inspector Smith
determined that t he violation was not S&S and t hat it was the result of Richards Construction’s
moderate negligence. After reviewing the facts at the safety and health conference, MSHA
Inspector Wasson modified the original citation to a section 104(d)(1) order with high negligence.
The standard provides, in part, that “[m]obile equipment shall not run over power conductors . . .
unless the conductors are properly bridged or protected.” The Secretary proposes a penalty of
$900 for this alleged violation.
Inspector Smith testified that he observed a pickup truck drive across the cited power
cord. (Tr. 297; Ex. P-3. P. 4 t op photo). Mr. Tanner was in the truck that ran over the cord as
he left the pit. Smith testified that driving over the power cord could damage the insulation and
create a safety hazard.
Mr. Richards testified that the radio and the cord were the personal property of the
crusher operator. (Tr. 515). He took the radio home with him every night and threw the cord
back across the road. Tanner drove over it in anger soon after Inspector Smith arrived at the
mine. Apparently, Tanner had an argument with another MSHA inspector on a previous
occasion. Id. Richards testified that he do es not want the crusher operator to listen to the radio
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because he wants him to be able to hear the crusher. Since this is not his equipment, Richards
does not believe that he should be held responsible.
I find that the Secretary established a violation. I find, however, that the violation does
not fit the criteria for unwarrantable failure. The violation was not serious; it had not existed for a
long period of time; and there was no showing that the operator had been put on notice that
greater efforts were necessary to comply with this standard. The violation is not very obvious
because there was no showing that vehicles normally traveled through this area while the cord
was present. There is no showing that the operat or engaged in aggravat ed conduct constituting
more than ordinary negligence other than the fact that Tanner drove over it when leaving the pit.
The negligence of Richards Construction was moderate. I find that a penalty of $50 is
appropriate.
Order No. 7904256 alleges a violation of section 56.18002(a) because a competent person
was not examining each working place at least once each shift for hazardous conditions.
Inspector Smith determined that the violation was S&S and that it was the result of Richards
Construction’s moderate negligence. After reviewing the facts at the safety and health
conference, MSHA Inspector Wasson modified the original citation to a section 104(d)(1) order
with high negligence. The standard provides, in part, that “[a] competent person . . . shall
examine each working place at least once each shift for conditions which may adversely affect
safety or health.” The Secretary proposes a penalty of $2,500 for this alleged violation.
The inspector testified that he issued this citation because he issued a large number of
citations for obvious safety violations. (Tr. 300). He designated this violation as S&S “because
of the large number of [S&S] violations” he had written. (Tr. 301). He believed that serious
injuries would likely result from the operator’s failure to do on-shift examinations. He felt that at
the time of the inspection, the pit was in very poor condition “safety wise.” Id.
Mr. Richards testified that he thought, based on his prior experience with Mr. Tanner, that
the pit would be operated in a competent manner when he was in Houston. (Tr. 519). He has a
difficult time understanding why Tanner let him down. He does not believe that this citation was
S&S because he makes sure that the pit is safe when he is there.
I find that the Secretary established an S&S violation. The Commission identified three
requirements of section 56.18002 as follows: (1) . . . workplace examinations are mandated for
the purpose of identifying workplace safety or health hazards; (2) the examinations must be made
by a competent person; and (3) a record of the examinations must be kept by the operator.” FMC
Wyoming Corp., 11 FMSHRC 1622, 1628 (September 1988). The record-keeping requirement is
set forth in subsection (b) of the standard. The Secretary defines a competent person as “a person
having the abilities and experience that fully qualify him to perform the duty to which he is
assigned.” 30 C.F.R. § 56.2. Mr. Richards did not present any evidence that the required
examinations were being performed or recorded. He testified that his employees quickly repair
any conditions that create a safety hazard, at least when he is at the pit. (Tr. 518). Although that
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is an excellent practice, if followed, it does not comply with the safety standard. Given the large
number of violations discovered during this inspection, it was reasonably likely that the violation
would contribute to an injury of a reasonably serious nature, assuming continued mining
operations. See Nelson Bros. Quarries, Inc., 21 FMSHRC 1100, 1110 (Oct. 1999) (ALJ); but cf.
Dumbarton Quarry Associates, 21 FMSHRC 1132, 1136 (Oct. 1999) (ALJ).
I also hold that the violation was created by the operator’s aggravated conduct
constituting more than ordinary negligence. Tanner was the agent of Richards Construction.
Richards testified that another inspector had discussed the need for on-shift examinations with him
during a previous inspection. (Tr. 518-19). Consequently, he was put on notice that greater
efforts were necessary. Smith asked Lance Richards about examination records, but the inspector
was not shown any such records. The violation was extensive because no records were kept. Mr.
Richards knew of the specific requirements of this safety standard. I find that the operator
unwarrantably failed to comply with the standard. A penalty of $500 is appropriate.
E. Other Citations
Citation No. 7904243 alleges a violation of section 56.4101 because signs were not posted
at the portable fuel storage tank at the crushing plant prohibiting smoking and open flames.
Inspector Smith determined that the violation was not S&S and that it was the result of Richards
Construction’s moderate negligence. Section 56.4101 provides, in part, that “[r]eadily visible
signs prohibiting smoking and open flames shall be posted where a fire or explosion hazard
exists.” The Secretary proposes a penalty of $224 for this alleged violation.
Inspector Smith testified that there were no signs prohibiting open flames or smoking near
the fuel storage tank. (Tr. 120; Ex. P-3, p. 3). The tank contained diesel fuel, which could catch
on fire or explode if someone smoked or lit a match in the area. Mr. Richards testified that there
was a “no smoking” sign on the trailer about 50 feet from the cited portable fuel storage tank.
(Tr. 453-54). He further testified that none of his employees smoke. He stated that a fire or
explosion was highly unlikely.
The safety standard requires that the warning sign must be posted “where a fire or
explosion hazard exists.” The only warning sign was 50 feet away on a trailer. The portable fuel
storage t ank can be moved at any time and it was not at the same location on the date of the
hearing. Id. I find that the Secretary established a violation. The violation was not very serious.
The fact that no employee smo kes is not controlling since a truck driver or other person could
smoke in the area without realizing the hazard. The operator’s negligence was moderate. A
penalty of $50 is appropriate.
Citation No. 7904244 alleges a violat ion of section 56.4200(a)(1) because firefighting
equipment was not present at the portable fuel storage tank at the crushing plant. Inspector Smith
determined that t he violation was not S&S and t hat it was the result of Richards Construction’s
moderate negligence. Section 56.4200(a)(1) provides that each mine shall have “onsite
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firefighting equipment for fighting fires in their early stages.” The Secretary proposes a penalty of
$224 for this alleged violation.
The inspector testified that this citation involves the same fuel storage tank. He stated that
he could not find any firefighting equipment in the vicinity of the fuel tank. (Tr. 122). Richards
testified that he had fire ext inguishers in his trailer and a water hose was about 24 feet from the
fuel tank. (Tr. 455). In addition, he testified that the best way to fight a fire is to throw dirt on
the fire. A shovel was located near the fuel tank and there was plenty of dirt available.
I find that the Secretary did not establish a violation. The safety standard provides that the
mine operator must have “onsite firefighting equipment,” but it does not require that this
equipment be located at fuel storage t anks. Inspector Smith did not know what firefighting
equipment the operator had at the pit. (Tr. 122). This citation is vacated.
Citation No. 7904250 alleges a violation of section 56.12004 because the outer jacket on
the orange extension cord in use behind the electrical trailer was damaged, but bare copper wire
was not exposed. The safety standard provides, in part, that electrical conductors “exposed to
mechanical damage shall be protected.” Inspector Smith determined that the violation was not
S&S and that it was the result of Richards Construction’s moderate negligence. The Secretary
proposes a penalty of $224 for this alleged violation.
Smith testified that he saw an extension cord that had a broken jacket in at least one
location. (Tr. 198; Ex. P-3, p. 6 bottom phot o). The cord had no t been spliced or repaired. The
cord was plugged into an outlet. (Tr. 202). Mr. Richards testified that the cited cord was not o ne
of his cords. (Tr. 479). The cord cited by the inspector looks very cheap and unreliable.
Richards believes that one of his employees must have brought it for his radio. He believes that
this cord was not being used for anything and was not energized. Richards stated that if he knew
that the cord was at the pit, he would have thrown it away. (Tr. 480). Richards testified that his
negligence should be low.
I find that the Secretary established a violation. The violation was not serious and the
operator’s negligence was moderate to low. It created a slight risk of an electric shock. A
penalty of $30 is appropriate.
Citation No. 7904253 alleges a violation of section 56.18013 because a communication
system was not provided at the crushing plant for employees to use in the event of an emergency.
The safety standard provides, in part, that a “suitable communication system shall be provided at
the mine to obtain assistance in the event of an emergency.” Inspector Smith determined that the
violation was S&S and that it was the result of Richards Construction’s moderate negligence.
The Secretary proposes a penalty of $655 for this alleged violation.
Inspector Smith testified that Lance Richards told him that he had a cellular phone but that
there was no provision for a phone to be present at all times. (Tr. 230-31). Smith determined
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that the violation was S&S because there were a number of serious hazards at the pit and there
was no way to obtain emergency assistance. For example, if someone were to become caught in a
tail pulley, he would need immediate medical assistance. (Tr. 232). Smith relied on the
statements made by Lance Richards in issuing the citation. (Tr. 233). Mr. Richards testified that
there was a house, which is kept unlocked, about 300 feet from the pit where there was a
telephone. (Tr. 486). He also testified his truck has a CB radio in it that can be used to obtain
emergency assistance. Richards further testified that there were other facilities nearby, including a
state maintenance yard, that could be used for emergency communications. Finally, he stated that
the scale house contained a telephone. (Tr. 487). He agrees that it is important to have a means
of obtaining emergency assistance. Richards testified that the Seeley Lake paramedics are about
2.5 miles away and that they could be at the pit in about three minutes. Id.
I find that the Secretary established a violation. The safety standard requires that the mine
operator provide an emergency communication system. Richards Construction cannot rely on
off-site telephones under the control of others to comply with the standard. See Ferndale Ready
Mix & Gravel, Inc., 6 FMSHRC 2154, 2160 (Sept. 1984) (ALJ). The CB radio in
Mr. Richards truck is not sufficient because the truck is not always at the pit. See Robert L.
Weaver, 21 FMSHRC 370, 372 (March 1999) (ALJ). Finally, I question Richards’ testimony
concerning the telephone in the scale house. Mr. Richards testimony about this phone was almost
an afterthought. The scale house was kept locked and the employees were apparently not
provided with a key so an employee would be required to break the window to use this phone.
Lance Richards made no mention of such a telephone to the inspector. Since Lance Richards did
not remember this phone, the two employees at the pit may not remember it either. Given these
facts, I find that Richards Construction did not comply with the safety standard.
I also find that the violation was S&S. A quick response to a medical emergency can
help prevent permanent injuries and fatalities. Id. When an accident occurs, the lack of a
communications system can contribute to a fatal accident. I find that it was reasonably likely that
the violation would contribute to an injury of a reasonably serious nature, assuming continued
mining operations. The operator’s negligence was moderate. A civil penalty of $200 is
appropriate.
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 13 non-S&S citations were issued at the pit between
February 4, 1997, and February 3, 1999. (Ex. P-6). Richards Construction is a very small
operator with two employees in addition to Mr. Richards. MSHA’s records show that the pit
worked about 1860 man-hours in 1998, less than 900 man-hours in 1999, and 286 man-hours in
2000. (Ex. J-1). All of the citations and orders were abated in good faith. In the absence of
evidence to the contrary, I find that the penalties assessed in this decision will not have an
adverse effect on Richards Construction’s ability to continue in business. My findings with
regard to gravity and negligence are set forth above. Based on the penalty criteria, I find that the
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penalties set forth below are appro priate. The reduction in the penalties is based primarily on the
very small size of the operator and, where noted above, the gravity and negligence criteria.
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 99-348-M
7903871 56.1000 Vacated
WEST 2000-168-M
7904240 56.14107(a) $200.00
7904241 56.14107(a) 10.00
7904242 56.14107(a) 50.00
7904243 56.4101 50.00
7904244 56.4200(a)(1) Vacated
7904246 56.14107(a) 200.00
7904247 56.14107(a) 10.00
7904248 56.14107(a) 250.00
7904249 56.14107(a) 200.00
7904250 56.12004 30.00
7904251 56.14107(a) 25.00
7904252 56.14107(a) 25.00
7904253 56.18013 200.00
WEST 2000-470-M
7904235 56.14130(g) 500.00
7904236 56.15002 300.00
7904237 56.15003 500.00
7904238 56.14132(a) 200.00
7904239 56.9300(a) 50.00
7904245 56.12005 50.00
7904256 56.18002(a) 500.00
Total Penalty $3,350.00
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Accordingly, the citations and orders contested in these cases are AFFIRMED,
MODIFIED, or VACATED as set forth above and Richards Construction is ORDERED TO
PAY the Secretary of Labor the sum of $3,350.00 within 90 days of the dat e of this decision,
unless the parties agree upon a different payment schedule. Upon payment of this penalty, these
proceedings are DISMISSED.
Richard W. Manning
Administrative Law Judge
Distribut ion:
John Rainwater, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
1600, Denver, CO 80202-5716 (Certified Mail)
John Richards, John Richards Construction, Box 316, Seeley Lake, MT 59868 (Certified Mail)
RWM
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