Secretary of Labor v. Duke's Sand & Gravel

Read the official release (fmshrc.gov)

Plain-English summary

MSHA found 21 section 104(a) violations and one section 104(g)(1) training order during Duke's Sand & Gravel's first inspection. The one-employee operation lacked required filings, guards, electrical protections, first-aid coverage, firefighting equipment, miner training, berms, sanitation, examination records, and written safety programs. Judge William B. Moran upheld every violation but rejected S&S classifications for exposed electrical conduits, failure to test ground continuity, and one wide stockpile ramp without berms. He also reduced many penalties after considering the mine's lack of prior violations, very small size, limited regulatory experience, and unusually prompt abatement. The total assessment fell from MSHA's proposed $3,514 to $2,085.

Decision snapshot

• Cited standards: 17 requirements in 30 C.F.R. Parts 41, 46, 47, and 56 covering registration, training, guarding, electrical safety, emergency readiness, berms, sanitation, examinations, and hazard communication
• Outcome: All 22 violations were affirmed, three S&S designations were rejected, and total penalties were reduced to $2,085.
• Key point: Commission judges assess penalties independently under section 110(i) and may give substantial weight to a small operator's clean history, size, and exceptional abatement while still upholding the underlying violations.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE: 202-434-9933
/ FAX: 202-434-9949

January 21, 2015

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH     

ADMINISTRATION
(MSHA),

Petitioner,

v.

DUKE’S
SAND & GRAVEL,

Respondent.

CIVIL
PENALTY PROCEEDING

Docket
No. YORK 2012-97-M

A.C.
No. 19-01212-275527

Mine:
Duke’s Sand & Gravel

DECISION

Appearances:               Laura
I. Pearson, Esq., Office of the Solicitor, U.S. Department of Labor, Denver,
CO, for Petitioner

John
Duquette, Jr., Duke’s Sand & Gravel, Adams, MA, for Respondent

Before:                                    Judge
Moran

Introduction

This
case concerns 22 alleged violations, 21 citations and 1 order, issued to Duke’s
Sand & Gravel (DS&G) by the Mine Safety and Health Administration on
October 19, 2011. Each of the citations was issued under Section 104(a) of the
Mine Act, and the single order was issued under Section 104(g)(1). 30 U.S.C. §
814(a), (g)(1) (2012). John Duquette, the mine operator, appearing before the
Court pro se, has essentially conceded the validity of each of the
citations, see Tr. 107-08, but has contested the negligence and gravity designations
associated with them, whether certain of the violations were significant
and substantial, and the appropriateness of the proposed civil penalties
sought by MSHA.[1]

A
hearing was held in North Adams, MA, on April 8-9, 2014, at which MSHA
Inspector Zane Burke and the mine owner, John Duquette, Jr., testified. Throughout
the hearing, Mr. Duquette testified about his lack of knowledge of MSHA’s standards.
The Court credits the Respondent’s testimony generally, but also notes that the
Secretary took the operator’s unfamiliarity with MSHA’s requirements into
account in assessing the negligence of each citation. In future proceedings, as
the Court cautioned at the hearing, protestations that DS&G did not know
about certain standards will not be well-received because it is the duty of
mine operators to familiarize themselves with those requirements.

For the reasons that follow, the Court
finds that each of the violations was established, but upon its independent
application of the statutory criteria to the facts adduced at the hearing, the
combined penalty has been modified to $2,085.00.

Penalty
Assessments

The
Commission has recently spoken to the subject of penalty assessments in
Hidden Splendor Resources, Inc., 36 FMSHRC ___, slip op., WEST 2009-208 (Dec.
23, 2014) (“Hidden Splendor”), wherein it noted that “[t]he Mine Act
sets forth a bifurcated penalty scheme under which the ‘Secretary proposes
penalties before a hearing based on information then available to him and, if
the proposed penalty is contested, the Commission affords the opportunity for a
hearing and assesses [the] penalty.’ Sellersburg Stone Co., 5
FMSHRC 287, 291 (Mar. 1983), aff’d, 736 F.2d 1147, 1151-52 (7th
Cir. 1984).” Hidden Splendor at 3. The Commission went on to observe
that

[t]he
Secretary's regulations at 30 C.F.R. Part 100 apply only to the Secretary's
penalty proposals, while the Commission exercises independent ‘authority to
assess all civil penalties provided [under the Act]’ by applying the six
criteria set forth in section 110(i). 30 U.S.C. § 820(i); Sellersburg Stone
Co. v. FMSHRC, 736 F.2d at 1151-52 (‘[N]either the ALJ nor
the Commission is bound by the Secretary’s proposed penalties . . . [W]e find
no basis upon which to conclude that [MSHA's Part 100 penalty regulations] also
govern the Commission."); see also W.S. Frey Co. v. Sec'y of Labor,
57 F.3d 1068, *5 (4th Cir. 1995) (unpublished) (citing Sellersburg, 736
F.2d at 1152) (holding that a Judge is authorized to determine a penalty amount
de novo based on statutory criteria).[2]

Id. at
3-4.

The
Commission then reminded that,

[i]n
a contested case, the amount of the penalty to be assessed by the Commission
and its Judges is a de novo determination based on the criteria set
forth in section 110(i), 30 U.S.C. § 820(i). Sellersburg Stone, 5 FMSHRC
at 293. Penalties assessed by Commission Judges can be greater than, less than,
or the same as those proposed by the Secretary. Id. However, when it is
determined, based on further information developed in an adjudicative
proceeding, that penalties should be assessed which substantially diverge from
those originally proposed, Judges must sufficiently explain the bases
underlying the penalties assessed. Id.; Cantera Green, 22
FMSHRC 616, 622-23 (May 2000).

Hidden Splendor at

6. The Commission also noted that “the Judge did not offer any
   explanation for the divergence, for instance, by explaining whether he gave
   special weight to various criteria, and thus failed to provide the basis for
   meaningful review of the penalty by the Commission.” Id.

Penalty
criteria uniformly applicable to each of the citations and the single order

Although
each alleged violation will be discussed, some observations regarding the
penalty criteria apply uniformly to each of them. For perspective, it is first
noted that for the 21 citations and 1 order involved with this docket, 13 were
proposed at penalty amounts of $100.00 (one hundred dollars), 8 at $243.00 (two
hundred forty three dollars) and the one order at $270.00 (two hundred seventy
dollars). Therefore it is fair to note that MSHA itself proposed assessments
that were on the very low range. After taking into account the 10% “Good Faith”
discount it applied, 13 of the citations received the minimum penalty
assessment that Part 100 allows.

MSHA cannot, under Part 100, assess a
penalty less than $100.00 (one hundred dollars), but the Court is not so
restricted by those provisions. Instead, as noted above, the Court’s assessment
is based upon the statutory criteria set forth at Section 110(i) of the Mine
Act. For many of the matters in this litigation, the Court has determined that
a penalty reduction below the proposed assessments is warranted upon
considering:

The operator’s history of previous
violations,
for which there is no previous history;

The appropriateness of the penalty to
the size of the operator’s business, which is a  1 (one) employee operation[3];
and

The demonstrated good faith of the
operator
in attempting to achieve rapid compliance after notification of the violations,
which in this case, by any measure, could not have been more rapid and is
fairly described as exemplary.[4]

A
fourth factor, the effect on the mine operator’s ability to continue in
business, is also applied uniformly to each established violation. DS&G
conceded that it will be able to continue in business, even if all of the
penalties in this case were to be assessed as proposed by the Secretary.[5]
Tr. 414. Therefore this criterion does not impact the penalty assessment.

As appropriate, the remaining penalty
criteria, negligence and gravity, are discussed for each individual citation
and the one order.

Findings
of Fact and Discussion of the remaining penalty criteria—negligence and gravity—to
the citations and order

Negligence
and Gravity

The Commission
has recognized that “[e]ach mandatory standard . . . carries with it an
accompanying duty of care to avoid violations of the standard, and an
operator's failure to meet the appropriate duty can lead to a finding of
negligence if a violation of the standard occurs.” A.H. Smith Stone Co.,
5 FMSHRC 13, 15 (Jan. 1983). In determining whether an operator met its duty of
care, it considers what actions would have been taken under the same
circumstances by a reasonably prudent person familiar with the mining industry,
the relevant facts, and the protective purpose of the regulation. U.S. Steel
Corp., 6 FMSHRC 1908, 1910 (Aug. 1984); Jim Walter Res., Inc., 36
FMSHRC 1972,1975 (Aug. 2014). Mitigating circumstances play a role in the
evaluation of negligence.

The gravity penalty criterion contained
in section 110(i) of the Mine Act requires an evaluation of the seriousness of
the violation. In evaluating the seriousness of a violation, the Commission has
focused on “the effect of the hazard if it occurs.” Consolidation Coal Co.,
18 FMSHRC 1541, 1549-1550 (Sept. 1996); Sellersburg Stone Co., 5 FMSHRC
287, 294-95 (Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984).

Background

On October 19, 2011, MSHA Inspector Zane
Burke[6]
arrived at Duke’s Sand & Gravel in Adams, MA, in response to a complaint
that a sand and gravel mine was operating without a Mine I.D. and with
multiple safety violations existing at the site. Tr. 50, 53-54. Upon
arriving at Respondent’s mine, Inspector Burke found only a single employee
present, a loader operator. Tr. 65. The Inspector noted that the operation had
a double deck screen plant and a jaw crusher and he determined that the
mine was under MSHA’s jurisdiction. Tr. 67-68,74. The Court agrees that Duke
Sand and Gravel is properly characterized as a mine due to the excavation,
crushing, and milling of gravel that takes place at the site. See 30
U.S.C. § 802(h)(1). Respondent does not contend that MSHA lacks jurisdiction.

Citation
No. 8654122[7]

Failure
to notify MSHA of legal identity

Section
104(a) Citation No. 8654122 alleges that Duke’s Sand & Gravel failed to
notify MSHA of its legal identity, in violation of 30 C.F.R. § 41.11(a), which
states in part:

Not later than
30 days after . . . the opening of a new mine . . . the operator of a coal or
other mine shall, in writing, notify the appropriate district manager of the
Mine Safety and Health Administration in the district in which the mine is
located of the legal identity of the operator.

DS&G had been operating for
approximately five months at the time the citation was issued, a period of time
which is well beyond the thirty day requirement in the regulation. DS&G
concedes the fact of the violation, but contests the penalty amount. DS&G
abated the citation by filling out a Mine I.D. application. Tr. 88, Ex. P-3. Mr.
Duquette did tell the Inspector at the time of the citation’s issuance that he
tried to call the MSHA field office in Albany. Tr. 89. However when the
Inspector attempted to verify that claim, no message from Mr. Duquette was
found. Tr. 90. The Inspector considered the matter to be a paperwork violation
and therefore listed “no likelihood of injury” for the gravity.

The
Secretary alleges that the violation occurred as a result of moderate
negligence. Section 100 defines an operator as moderately negligent when he
“knew or should have known of the violative condition or practice, but there
are mitigating circumstances.” 30 C.F.R. § 100.3(d). The Inspector’s notes
reflect that the operator told him that he had spoken with other mine operators
and thought that MSHA would come to him and give him an ID with no fine. Tr. 91-92,
Gov. Ex. P-3. The Inspector’s position was that Mr. Duquette would have had to
assert that he didn’t know anything about MSHA to qualify for low negligence. Tr.
92.

The Inspector acknowledged that, at the
time of issuing the citation, Mr. Duquette showed him another MSHA Inspector’s business
card, which had been handed to him by another mine operator. Tr. 96. Mr. Duquette
alleged that he called the number listed on that card to become informed about
his MSHA responsibilities. Tr. 97. Mr. Duquette only called the number on that
card; he did not call any other MSHA telephone numbers. Tr. 112. He stated that
he called that one inspector and left at least one message, inquiring about
MSHA, prior to the October 18, 2011, inspection. Tr. 113. While he knew that
MSHA existed and that it had the authority to fine gravel mines, Mr. Duquette
was not aware of much beyond that. In fact, he believed that MSHA would
function in a manner similar to OSHA, where an inspection could occur but
without any pre-existing obligation to register with it. See Tr. 109,
119-20. He did not know the full extent of the regulatory scheme, nor was he
aware that he had a duty to notify MSHA that he was operating a gravel mine. Tr.
121-22.

As the Court noted at the hearing, if it
were to find that Mr. Duquette did try and call MSHA that effort could impact
the evaluation of negligence on his part. Tr. 100. Mr. Duquette also stated
that he immediately obtained the required I.D. after receiving the citation and
that there was no foot-dragging on his part. In fact, the Secretary stipulated
that Mr. Duquette filled out the required form while the Inspector was still on
the mine property. Tr. 124-125.

Determination
of the Court

When
assessing a penalty, the Court must consider the following factors provided in
section 110(i) of the Mine Act:

the operator’s
history of violations, the appropriateness of such penalty to the size of the
business of the operator charged, whether the operator was negligent, the
effect on the operator’s ability to continue in business, the gravity of the
violation, and the demonstrated good faith of the person charged in attempting
to achieve rapid compliance after notification of a violation.

30
U.S.C. § 820(i). Additionally, while the Secretary has proposed a penalty, a
judge’s determination is not restricted by the amount of the proposed penalty. 29
C.F.R. § 2700.30(b).

As noted above, three of the six factors
have shared determinations, which are applied uniformly to each of the
established violations. A fourth factor, ability to continue in business, also discussed
previously, applies uniformly to each of the established violations as well,
although that factor does not impact the penalty assessments in the only way it
potentially could, by reducing a penalty, because DS&G concedes that, even
as proposed, imposition of the penalties would not threaten its ability to
continue in business.

It has also been mentioned, and MSHA has
acknowledged, Mr. Duquette’s good faith in addressing each citation with
exemplary promptness.[8]
See also Exhibit A. Each penalty assessed in this case arose out of the
one inspection carried out on October 19, 2013, and Mr. Duquette worked to
rapidly achieve compliance with a necessarily demanding regulatory regime. Accordingly,
the Court finds that, for each of the twenty-two violations in this case,
DS&G exhibited good faith in achieving rapid compliance.[9]
As it pertains to this citation, Mr. Duquette’s good faith in achieving rapid
compliance could not have been faster.

As
for negligence, Mr. Duquette’s unfamiliarity with MSHA and the requirements
imposed on gravel mine operators mitigates a finding of high negligence, as
does his attempt to contact a mine inspector, although his efforts in that
regard should have been greater. While a mine operator has a responsibility to
familiarize himself with the regulations, and asserted ignorance of a
regulation is not a defense to penalty enforcement, in this case, the Court
finds that Mr. Duquette’s lack of familiarity with MSHA warrants lowering the
negligence of this citation somewhat. Mr. Duquette is not a sophisticated
operator in this industry. As noted at the time of the inspection, he had one
employee, had only been in business for a manner of months, and had yet to even
sell any of the gravel he was making.

The
gravity of this citation was listed by the Inspector at its lowest possible
level, with no likelihood of injury and no lost workdays. DS&G was in
operation for five months before MSHA was aware of its existence. While the
likelihood of injury is nonexistent in this citation (this is a paperwork
violation), failing to file for a Mine I.D. subjected the single employee in
this case to dangers that could have been prevented by safety inspections. Without
knowing of the existence of a mine, MSHA cannot perform its duty of protecting
miners from needlessly unsafe working conditions.

Upon
consideration of the penalty criteria, the Court assesses a civil penalty of $50.00
for Citation No. 8654122.

Citation
No. 8654123[10]

Failure
to notify of commencement of operations

Section
104(a) Citation No. 8654123 alleges that Duke’s Sand & Gravel “failed to
notify the nearest MSHA field office . . . of the crushing & screening
operation” in violation of 30 C.F.R. § 56.1000. Ex. P-5. Section 56.1000
requires that mine operators notify MSHA of the date that a mining operation
will commence. The Secretary alleges that the violation occurred as a result of
moderate negligence, but that there was no likelihood of injury since it was a
paperwork violation. Ex. P-5; Tr. 134. The Inspector testified to that effect,
stating that he was “trying to give the operator the benefit of the doubt that
he wasn’t fully aware of the . . . [56.1000] criteria.” Tr. 134. DS&G
abated the citation by filing the correct paperwork with MSHA. Tr. 135. The
Inspector distinguished this citation from the legal identity violation, in
that by MSHA learning about an operation’s start-up, it can schedule its
inspections. Not knowing of that, he stated, exposes miners to the potential of
accidents or injuries that an inspection might uncover. Tr. 129. As a seasonal
or intermittent operation, the Respondent is required to complete this form
when they start and stop operation. As with the previous citation, this was another
obligation about which Mr. Duquette was unaware. Tr. 134. Employing the same
rationale as for the failure to notify MSHA of its legal identity, the
Inspector ascribed moderate negligence to the violation. Tr. 134.

In
response to the Inspector’s testimony, Mr. Duquette stated he did not know
about any of the violated regulations at issue in this case; if he had, he
would have complied with the requirement. Tr. 135.

Determination
of the Court

The
negligence associated with this violation is mitigated in the sense that the
failure to notify of commencement of operations and the previously-discussed
violation for failure to notify MSHA of legal identity arose out of the
Respondent’s ignorance of the requirements. The Court views this violation as
essentially finding more than one violation stemming from the same lack of
knowledge of the regulatory duties. When considered along with the one-employee
nature of the mine, a lesser penalty, for a first offense, seems more
appropriate for this paperwork violation.

Upon consideration of the penalty
criteria, including those which, as previously discussed, apply to each of
these matters, the Court assesses a civil penalty of $50.00 for Citation
No. 8654123.

Citation
No. 8654124[11]

Lack
of guard on screening plant

Section
104(a) Citation No. 8654124 alleges that Duke’s Sand & Gravel violated 30
C.F.R. § 56.14112(b), which states that “[g]uards shall be securely in place
while machinery is being operated.” DS&G was cited under this standard
because the screen plant was missing a guard on the small aggregates belt,
leaving the tail pulley fully exposed. Ex. P-9. The Inspector stated that there
was an exposed tail pulley that was within “hands-reach,” creating an
entanglement or pinch-point hazard where one could get pulled into the pulley. Tr.

143. Thus, he found that there was a danger of entanglement of human
     extremities, that such an occurrence would be fatal, albeit unlikely, and that DS&G’s
     negligence in this instance was moderate. Ex. P-9.

DS&G abated the citation within the
time given by the Inspector by fabricating and attaching a mesh guard to
prevent people from making contact with the pulley. Tr. 165. The Inspector
agreed that the mine’s sole employee, the loader operator would not be exposed
to the pinch point unless he got off the loader. Tr. 146. He also stated that
the likelihood of an injury was “unlikely” because Mr. Duquette advised that the
machine is shut down when work is done on it and, when it is operating, persons
are not near it. Tr. 151. As this is a one-person operation, only one person
would be exposed to the hazard. Tr. 151. The opening was eight to nine inches
long and three to four inches wide. Tr. 158-159. Thus it is fair to observe
that the opening was small. While any injury would be serious, the Inspector’s
testimony did not support his claim that it would likely be fatal, but rather
that it would be permanently disabling. Tr. 161.

The Inspector marked the negligence as
moderate on the basis that Mr. Duquette instructed that employees are not to
travel in that area when the machine is operating. Tr. 163. The Inspector’s
MSHA training was that, in evaluating the negligence of a violation, they are
to start with the presumption that the negligence is high and then work down
from that designation if there are mitigating circumstances. Tr. 163. The Court
does not analyze negligence under such an approach. It decides the appropriate
negligence based on the evidence at hearing, without any presumption one way or
the other. In terms of abatement, the screen mesh guard was installed “shortly
after the citation was [] written.” Tr. 164-165. The Inspector agreed that Mr. Duquette
instructed that the guard be fixed “A.S.A.P.” at the time it was cited and that
this involved his calling the Berkshire County Construction Company. Tr. 165. Again,
Mr. Duquette emphasized that this is a one-employee operation.

During
his testimony, Mr. Duquette maintained that contact with the opening was
implausible because, when it is running, rocks are being tossed out all over
the place from its operation and therefore the idea that one would be able to
get near that pinch point was not realistic. Tr. 170. He added that his employees
are trained to not go near the machine. As he put it, even his two year old
daughter would realize the need to stay away from the machine due to the
falling rocks and therefore no one would be near the cited opening. Tr. 170-171.

The
violation of section 56.14112(b) occurred on an Extec 5000 screen plant, which
is used to separate various sizes of mined stone and gravel from one another. Tr.
143-144. The side pulley missing the guard stood about three feet from the
ground, and the opening that required a guard was three to four inches high and
eight to nine inches wide. Tr. 146, 158.

When
the screening plant is actively sorting material, an employee running the plant
would not generally be subject to any danger of entanglement because the employee
would be loading the plant, in this case with a front-end loader. Tr. 145. But,
if the employee were to exit the cab of the front-end loader and interact with
the area of the screen plant near this tail pulley, he may become entangled. Tr.
146.

Inspector
Burke testified that entanglement could result in a fatality. If a hand got
caught in the belt, the belt may pull the person in all the way up to the neck,
possibly snapping that person’s neck. Tr. 149, 153. He further testified that
he had seen fatalgrams (MSHA reports of fatal mining accidents) of this type of
accident, but he did not know whether the opening in those cases was the same
size as the opening in this case. Tr. 150, 162.

Based
on his conversation with Mr. Duquette, the Inspector found that an injury would
be unlikely because the machine would be off when the operator or his employee
would perform maintenance, and when the machine is running, the employee would
not be around that area. Tr. 151. Furthermore, because DS&G has only one
employee, if the person running the screen plant is loading it, there is no one
else exposed to the dangerous condition. Tr. 151.

Finally,
the Inspector assessed that the violation was a result of moderate negligence
because, first, Mr. Duquette had told his employee not to travel in the
dangerous area while the machine is in operation, and, second, this was Mr. Duquette’s
first inspection. Tr. 163.

Mr.
Duquette testified that, when the machine is running, rocks are falling down
out of the hopper and onto the belt, and a competent person would know not to
go near the dangerous area. Tr. 170. Because the danger is so obvious, it is
extremely unlikely that any injury would occur. Tr. 171. In abating the
citation, Mr. Duquette further testified that he promptly called employees from
his other company to fabricate the guard. Tr. 172.

Determination
of the Court

The
Court finds that DS&G’s negligence in this instance was lower than the
government contended, as was the gravity. While a fatality could occur if a
miner came into contact with the unguarded tail pulley, the possibility of a
person becoming caught in the exposed area, due to the small size of the
opening and the obviousness of the hazard, is low. Also, since only DS&G
only employs one miner, no person should ever be exposed to the hazard because
when the machine is running, the miner should be in the cab of the front end
loader, loading the screen plant with material to sort.

Upon
consideration of the penalty factors, the Court imposes a penalty of $50.00 for
Citation No. 8654124.

Citation
No. 8654125[12]

Missing
inspection plate on jaw crusher[13]

Section
104(a) Citation No. 8654125 alleges that Duke’s Sand & Gravel violated 30
C.F.R. § 56.12032, which states that “[i]nspection and cover plates on
electrical equipment and junction boxes shall be kept in place at all times
except during testing or repairs.” DS&G was cited under this standard
because the 1538 Telsmith Jaw Crusher was missing a seal on the motor starter
control panel. Ex. P-11. The Inspector found that debris, moisture, and rodents
could cause short circuits or stray current paths, creating an electrical shock
hazard, that such an occurrence would be fatal, albeit unlikely, and that DS&G’s
negligence in this instance was moderate. Ex. P-11. The operator abated the
citation by placing a knockout seal on the box. Tr. 182. A one inch seal
was missing from the motor control and that allowed the mentioned dirt, debris,
moisture, etc., to enter through that opening. Tr. 175. The seal is simply a
plug to cover the opening. Tr. 176.

The crusher in question had a voltage of
four hundred and eighty volts. Tr. 179. If something were to get into the
control panel and create a short circuit or stray current path, Inspector Burke
stated that the resulting electric shock could be fatal, depending on where the
current entered the body. Tr. 178, 181. Such electrocution could happen in
different ways. Rodents could chew on the wires, for example, or dust could
enter the box’s insulating wires, creating a current through condensation. Tr. 180.
However, Inspector Burke testified that there was no sign of moisture, foreign
objects, or rodent activity in the control panel, and, accordingly,
characterized the likelihood of injury as unlikely. The Inspector also did not
see any internal damage to the conductors. Tr. 178. He also did not see any
deterioration inside the box. Tr. 185.

Inspector Burke also found that the
negligence was moderate, while asserting that Mr. Duquette expressed the view that
a hole of that size in the control panel was not a problem. Tr. 182. Mr. Duquette
contradicted the Inspector in that aspect, testifying that he did not
claim that a hole in a control panel was not a problem. Tr. 186. Instead, he
asserted that it was the operator of the machine who made that claim. In fact,
Mr. Duquette agreed that the hole needed to be plugged, and that if an injury
occurred due to electrical shock from this machine it could be fatal. Tr. 186-87.

Determination of the Court

The
Court notes that the opening was minimal, being only one inch in diameter and
that, as the Inspector testified, there was no sign of moisture, foreign
objects, or rodent activity in the control panel. Therefore it agrees that the
likelihood of injury was appropriately marked as unlikely. There was no
testimony that this condition had been long-existing. The Court also finds that
the negligence was low, not moderate, and along with consideration of the other
statutory criteria, finds that a penalty of $50.00 is an appropriate
penalty assessment for Citation No. 8654125.

Citation
No. 8654126[14]

Exposed
conduits on the jaw crusher

Section
104(a) Citation No. 8654126 alleges that Duke’s Sand & Gravel violated 30
C.F.R. § 56.12004, which states that “[e]lectrical conductors exposed to
mechanical damage shall be protected.” DS&G was cited under this standard
because a conduit was exposed at two locations on the crusher. Ex. P-14. The
Inspector found that the condition created an electrical shock hazard, that
such an occurrence would be fatal and reasonably likely to happen, that DS&G’s
negligence in this instance was moderate, and that the violation was
significant and substantial. Ex. P-14. The citation was abated by putting the
conduit and strain relief connector back together. Tr. 197.

On
the feeder belt of the jaw crusher, the Inspector observed that the flex
conduit was pulled out of the strain relief connector, and the electric metal
tubing (E.M.T.) conduit was pulled out of its rain-tight connector. Tr. 189. The
flex conduit likely became exposed because normal vibrations of the crusher
caused a clamp to slide down. Tr. 190-191.

However,
even though the flex conduit was pulled out of the strain relief connector, no
bare wires were exposed. Tr. 200. In order to be injured, the wires inside the
conduit would have to be worn bare. At the time of the citation, they were
still insulated. Additionally, even if the bare wires were exposed, Inspector
Burke testified that the person touching the wires, in order to be
electrocuted, would have to be a better ground than the grounding system. Tr. 201-202.
During his inspection, he “didn’t see anything that would indicate the
grounding system was at fault,” and the metal crusher frame was touching the dirt,
creating a natural ground.” Tr. 202. Should each of these requirements be met,
however, the Inspector testified that an electrical shock from contact with the
machine could be fatal. Tr. 195. The Inspector also found that Mr. Duquette’s
negligence was moderate, because Mr. Duquette stated that he did not see the
condition before the Inspector discovered it. Tr. 196.

The strain relief connector holds the
flex conduit in place. To fix the problem, the conduit and the strain relief
connector were simply reconnected. Tr. 197. However, the Inspector based his
conclusion that an injury was reasonably likely on the basis that he “didn’t
perceive it being fixed right away,” but he offered no rationale to support
that view. Tr. 191. He stated that the condition was obvious and he marked it
as S&S because “of the exposed wires.” Tr. 194. Yet, he marked the
negligence as moderate because the operator didn’t see the condition. Tr. 196. The
Inspector agreed with the Court that because there were no bare wires, if one
were to touch those wires no harm would result. Tr. 200. This was true with
regard to both of the conditions the inspector observed. Tr. 200. Further, the
Inspector did not observe any deterioration in those wires. Tr. 200. The
inspector said had he observed such a problem he would have noted bare or
chafed wires in his citation. Tr. 200. As he put it, “those wires were
probably in pretty good condition.” Tr. 200-201 (emphasis added). In
addition, the Inspector effectively conceded that, as he saw nothing to
indicate that there was anything wrong with the grounding system, it was less
likely that one would be shocked. For his part, Mr. Duquette testified that
because a flex pipe is present, there would not be any steel rubbing on steel
and the flex tubing is a silicone base, and for those reasons he believed it
was unlikely that shaved wires would result. Tr. 204. In short, Mr. Duquette
believed it was very unlikely for the wires to become bare under those
conditions. Tr. 206. Also, as to the second condition, Mr. Duquette stated that
the equipment was not then in service and that it was not connected,
electrically, inside the box. Tr. 206. He did not relay this information to the
Inspector at the time of the citation because he did not know at the time that
power was not running through the conduit. He had recently bought the equipment
used, and had not fully inspected it. Tr. 211.

Determination
of the Court

The
Secretary has alleged that this violation was significant and substantial,
which denotes a more serious violation. In Mathies Coal Co., 6 FMSHRC 1
(Jan. 1984), the Commission explained that in order to find a violation
significant and substantial,

the Secretary of
Labor must prove: (1) the underlying violation of a mandatory safety standard;
(2) a discrete safety hazard—that is, a measure of danger to safety—contributed
to by the violation; (3) a reasonable likelihood that the hazard contributed to
will result in an injury; and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.

Id.
at
3-4 (internal citation omitted).  

As noted above, the applicable portion
of the cited standard provides that “[e]lectrical conductors exposed to
mechanical damage shall be protected.” The testimony from the Secretary’s
witness established that there were wires present and that they were exposed.

“Conductor”
is defined in section 56.2 as “a material, usually in the form of a wire,
cable, or bus bar, capable of carrying an electric current.” Although Mr. Duquette
provided unchallenged testimony that the wires at issue were not carrying a
current at the time of the inspection, nor did they carry a current after the
inspection, he did not assert that claim until long after the citation was
issued and it cannot be credited. While the violation was established, the
condition of the wires, and the grounding system contradicts the Inspector’s
S&S conclusion. Finding that the violation was somewhat less than “reasonably
likely” to result in an injury or illness under the accepted facts, the Court
reduces the penalty to $143.00.  

Citation
No. 8654127[15]

Missing
guard on crusher

Section
104(a) Citation No. 8654127 alleges that Duke’s Sand & Gravel violated 30
C.F.R. § 56.14112(b), which states that “[g]uards shall be securely in place
while machinery is being operated.” DS&G was cited under this standard
because the crusher was missing a guard. Ex. P-15. The Inspector found that the
condition created an entanglement hazard, that such an occurrence would be
fatal, albeit unlikely, and that DS&G’s negligence in this instance was
moderate. Ex. P-15. The citation was abated by bolting corrugated screen cloth
on the access point on each side of the crusher. Tr. 220.

Inspector
Burke issued this citation because the “under jaw main belt conveyor was found
to have the rib tail pulley fully exposed at ground level.” Tr. 215. The part
of the machine that required a guard was the area of the belt beneath the jaw
that received crushed material and carries it forward. Tr. 216. The Inspector
thought that injury from being caught in the belt would be a fatal neck injury,
through dismemberment from being pulled into the machine. Tr. 217-18. He
considered it unlikely, however, because the dangerous area is underneath the
crusher and not easily accessed, but a worker may access it in order to adjust
the belt or shovel a clog underneath the belt. Tr. 219. He described the negligence
as moderate because the operator had told his employee to turn off the crusher
before working on it. Tr. 220. On cross-examination, Inspector Burke agreed
that in order to get into the belt area and be caught in it, a miner would have
to squeeze into the area. Tr. 221.

Mr.
Duquette testified that he trained his employee not to go near the belt area
when the machine was running. Tr. 224. The employee, before working on the
machine, is supposed to turn off the machine and lock it. Tr. 224. Mr. Duquette
also testified that it was extremely unlikely that an injury would occur
because of the difficulty of getting under the crusher and into the dangerous
area. Tr. 229.

Determination
of the Court

Getting
caught in the belt could lead to death, but the chance of an injury occurring
was so remote as to warrant lowering the penalty. The employee would need to
squeeze into the area for access. The Court also lowers the negligence in this
instance because the danger, involving difficult access to the hazard, was not
obvious and the employee had been instructed how to safely work on the machine.
Considering all of the penalty factors, the Court imposes a penalty of $50.00
for Citation No. 8654127.

Citation
No. 8654128[16]

Failure
to perform ground continuity test

Section
104(a) Citation No. 8654128 alleges that DS&G violated 30 C.F.R. §
56.12028, which states that “[c]ontinuity and resistance of grounding systems
shall be tested immediately after installation, repair, and modification; and
annually thereafter. A record of the resistance measured during the most recent
tests shall be made available on request by the Secretary or his duly
authorized representative.” DS&G was cited under this standard because the
motors on the jaw crusher and the remote generator had not been tested. Ex. P-16.
The Inspector found that the condition created an electric shock hazard, that
such an occurrence would be fatal and reasonably likely to occur, that the
violation was significant and substantial, and that DS&G’s negligence in
this instance was moderate. Ex. P-16. A licensed electrician performed the
continuity resistance test, thus abating the citation. Tr. 245.

Continuity
and resistance tests are performed to ensure that ground systems are
functioning to eliminate fault currents that can energize metal parts of
machines. Tr. 232. If the system is faulty, it can create a fatal electric
shock hazard. Tr. 232. An operator is required to keep a record of the most
recent test; Mr. Duquette did not have a record of the most recent test,
because the equipment had never been tested. Tr. 236. The Inspector stated that
Mr. Duquette “did not know there was such a thing” as a continuity and
resistance test. Tr. 238.

Inspector
Burke testified that an injury from this violation could reasonably be expected
to be fatal because a current of electricity would be traveling through the
body. Tr. 240. The lack of testing contributes to the hazard of an ungrounded
machine because there are several ways a machine can be improperly or
inadequately ground—for example, there could be corrosion, broken wires, dirt
in connections, or the soil could be a poorer conductor than a human body. Tr. 240-241.
He thought that an injury was reasonably likely because of the unknown history
of the machine, which he estimated to be fifteen to twenty years old, and
because he noticed broken conduits and exposed wires. Tr. 241. Inspector Burke
designated the negligence as moderate because the operator did not know he was
required to perform a ground test, but stated that the negligence was not low
because the operator knew enough about MSHA that he should have inquired into
the regulations. Tr. 244. The Inspector stated that the only time he would have
found the negligence to be low would if the operator had said that he had no
idea what MSHA was about. Tr. 259.

The
Inspector also testified that if he had not cited the operator for any
violations on the equipment, he would have marked this citation non-S&S. Tr.

247. Upon further questioning, he admitted that, other than the exposed
     conduits (which were non-functioning) and the knockout seal, everything on the
     machine appeared to be in working condition, but that he could not know the
     internal condition of the motors. Tr. 248.

Determination of the Court

Under
the Mathies criteria, the Secretary established a violation (failure to
perform continuity and resistance tests), a discrete safety hazard (an
ungrounded or improperly grounded machine), and that such hazard is reasonably
likely to result in a reasonably serious injury, but the Court finds that the
reasonable likelihood element was not established, on the evidence of record,
because the attending circumstances did not support that conclusion. Because
the ground continuity test is important, however, a penalty of $200.00
is imposed for this violation.

Citation
No. 8654129[17]

No
employee present at the mine trained in first aid

Section
104(a) Citation No. 8654129 alleges that Duke’s Sand & Gravel violated 30
C.F.R. § 56.18010, which states that “[a]n individual capable of providing
first aid shall be available on all shifts.” DS&G was cited under this
standard because the operator’s only employee, William Videll, was not trained
in first aid. Tr. 267. Mr. Duquette was not aware of the requirement. Tr. 268. The
Inspector found that the violation created a risk of death, but that the injury
was not reasonably likely, and the operator’s negligence was moderate. Ex. P-18.

Inspector
Burke had originally issued the citation as “reasonably likely” and
“significant and substantial,” but lowered the likelihood when he learned that
the employee had received some first aid training in the past. Tr. 271. Mr. Duquette
abated the citation by enrolling his employee in a first aid training program,
and he exceeded the minimum requirements by also enrolling in the training
program. Tr. 273-74.

Determination
of the Court

The
Court agrees with the Secretary’s characterization of the violation, but finds
that Mr. Duquette’s abatement, which exceeded good faith, warrants a reduction
in the proposed penalty. The Court imposes a penalty of $50.00 for
Citation No. 8654129.

Citation
No. 8654130[18]

No
fire extinguishers on site

Section 104(a) Citation No. 8654130
alleges that Duke’s Sand & Gravel violated 30 C.F.R. § 56.4200(a)(1), which
states that mines are required to have “[o]nsite firefighting equipment for
fighting fires in their early stages.” DS&G was cited under this standard
because it did not have any fire extinguisher at the mine site. Ex. P-20; Tr. 275-76.
The Inspector originally found that injury was reasonably likely to occur and
result in lost workdays or restricted duty, the violation was significant and
substantial, and the operator’s negligence was moderate. Ex. P-20. He later
reduced the likelihood to unlikely and dropped the significant and substantial
designation. Ex. P-20. The operator abated the citation by purchasing fire
extinguishers for the mine. Ex. P-20.

The
Inspector stated that the mine contained several possible sources of fire,
including diesel-operated vehicles, electric motors, and hydraulic pumps on the
equipment. Tr. 276-77. Mr. Duquette told the Inspector that there were no fire
extinguishers at the mine. Tr. 277. The Inspector found that smoke inhalation
and burns were possible injuries, and that they would result in lost workdays
or restricted duty. Tr. 278. He also testified that had originally intended to
mark the likelihood as unlikely. Tr. 278-79. The injury was marked as unlikely
because the Inspector saw few heat sources, such as torches or smoking
employees, near the equipment. Tr. 279. The Inspector designated the operator’s
negligence as moderate because the Inspector thought that there was a fire
extinguisher located on the property, but there was not. Tr. 279.

Mr.
Duquette testified that, although the citation states that he purchased three
fire extinguishers to abate the citation, he actually purchased eleven. Tr. 283.
The Inspector had previously testified that even purchasing three would have
exceeded the operator’s obligation under the regulation. Tr. 281. Mr. Duquette
stated that every piece of equipment at the mine now has a fire extinguisher. Tr.
282.

Determination
of the Court

The
Court agrees that an injury was unlikely, the operator’s negligence was
moderate, and the likely injury would have resulted in lost workdays or
restricted duty. Mr. Duquette demonstrated good faith in abating this citation
far beyond his obligation. Reading the statutory penalty criteria, one could
argue that negligence and gravity, by their nature, reflect more serious
penalty factors. The Court would agree that, in the majority of instances,
those factors are, relatively speaking, more significant. But Congress did not
so designate, elevate, or rank the various penalty factors. This may
attributable to a recognition that, in a given instance, the particular facts
may warrant giving additional credit, and therefore reducing a penalty, because
of a mine operator’s actions when cited for a violation. Here, the Court finds
that such an enhanced weighting is appropriate, given Mr. Duquette’s salutary
reaction in purchasing far more fire extinguishers than required for this one
employee operation. The Court imposes a penalty of $25.00 for Citation
No. 8654130.

Order No. 8654131[19]

No
newly hired experienced miner training or new miner training

Section 104(g)(1) Order No. 8654131
alleges that Duke’s Sand & Gravel violated 30 C.F.R. § 46.6(a),[20]
which states that mines are required to “provide each newly hired
experienced miner with training as prescribed by paragraphs (b) and (c)” of the
section. 30 C.F.R. § 46.6(a) (emphasis added). DS&G was cited under this
standard because it only provided task training to its lone employee, Mr. Videll.
Ex. P-22; Tr. 284. Pursuant to section 104(g)(1), Inspector Burke issued a withdrawal
order. Ex. P-22. The Inspector found that injury was reasonably likely to occur
and that it could reasonably be expected to be fatal, that the violation was
significant and substantial, and that the operator’s negligence was moderate. Ex.
P-22. The operator abated the citation by giving the employee newly hired
experienced miner training. Ex. P-22.

Inspector
Burke interviewed the employee, who stated that he had only received task
training. Tr. 286. The
Inspector determined that the employee was an “experienced miner,” apparently
on the basis that he had received task training and also based on that
employee’s disclosure to the Inspector of his former work experience. Tr. 284,
286-287. He
determined that an injury contributed to by the violation could reasonably be
expected to be fatal because of the multiple violations he had already seen at
the mine site and the mine conditions, such as electrical shock hazards, roll
over hazards, and entanglement hazards. Tr. 291.

Mr.
Duquette testified several times that the employee had received the required
training prior to the issuance of the citation, and that he just did not fill
out the required form. Tr. 303-07. He also stated, however, that the employee
underwent eight hours of training following the issuance of the citation in
order to abate it. Tr. 307. On cross-examination, Mr. Duquette also stated that
he did not train the miner on his statutory rights under the Mine Act, among
other things. Tr. 314.

Determination
of the Court

30
C.F.R. §§ 46.5 and 46.6 require, respectively, that mine operators train new
miners and newly hired experienced miners. Both sections require the following
training before work begins or within 60 days of working at a mine:
introduction to the work environment; training on electrical and other hazard
recognition; review of emergency medical procedures, escape plans, and firefighting
procedures; instruction on health and safety standards related to tasks;
instruction on HazCom program; instruction on miners’ statutory rights; review
of supervisory structure and miners’ representatives; introduction to hazard
reporting procedure; demonstration of self-rescue and respiratory devices. 30
C.F.R. §§ 46.5, 46.6. Mr.
Duquette did not challenge the Inspector’s designation that the employee was a
newly hired, experienced employee, and assert that he was only a new
employee, nor would it have made sense to do so. Therefore the Court finds
that, on this record, the violation of 30 C.F.R. § 46.6(a) was established. Further,
at least as applied in this instance, the proper classification of the miner,
as a “new miner” or a “newly hired experienced miner,” is not critical, as the
miner lacked the appropriate trainer under either classification.  

Mr.
Duquette, at the time of the inspection, was all but unaware of the existence
of MSHA. He had little to no knowledge of the depth and breadth of the Mine
Act’s enforcement scheme, as he readily admitted. He did not have a HazCom
program, so he could not train his employee on a HazCom program. He had no fire
extinguishers at the mine, so he could not train his employee on firefighting
procedures. He had no knowledge of the Mine Act, so he could not train his
employee on his rights under the Act. Accordingly the Court concludes that Mr. Duquette
failed to train his employee fully under either standard and that this was not
solely a paperwork violation.

The
Court also finds that this violation was significant and substantial. The
violation contributes to a host of hazards (shock hazards, roll over hazards,
and entanglement hazards, for example) that are reasonably likely to result in
a reasonably serious injury. After considering the 110(i) factors, the Court
imposes the penalty assessed by the Secretary for Citation No. 8654131: $270.00.
An untrained miner “can expose himself to unsafe conditions and may create an
accident or an injury.” Tr. 287. Mr. Duquette’s lack of knowledge
notwithstanding, this is a serious violation and goes to the core of MSHA’s
mission—the health and safety of miners.

Citation
Nos. 8654132, 8654133, 8654134, 8654135, and 8654136[21]

No berms provided on ramps at mine site

Section 104(a) Citation Nos. 8654132,
8654133, 8654134, 8654135, and 8654136 each allege that DS&G violated 30
C.F.R. § 56.9300(a), which states 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.” Berms are an “impeding device constructed on an elevated roadway or
ramp . . . to let the operator [of a vehicle] know he’s too close to the edge.”
Tr. 323. They can be made of various materials—“gravel, stone, large stones,
concrete blocks, [or guard rails]—but they have to be tall enough to reach
mid-axle height of the vehicles traveling on the elevated roadway or ramp. Tr. 323.
DS&G was cited under this standard because berms were not provided on
several ramps at the mine site. Ex. P-24. For each citation, the Inspector
found that the lack of berms was reasonably likely to cause a fatality, that DS&G’s
negligence was moderate, and that the violation was significant and substantial.
Ex. P-24; Ex. P-26; Ex. P-27; Ex. P-28; Ex. P-29. The Court will discuss each
citation in turn.

Citation
No. 8654132
concerns the jaw crusher feeder ramp. The ramp measured 33 feet long, 31 feet
wide, and had a 12 foot drop-off on each side. Ex. P-24. The loader that would
travel on the ramp (and all the other ramps at issue in these citations) had a
mid-axle height of 26 inches. Ex. P-24. The citation was abated by constructing
berms on both sides. Tr. 336.

Inspector Burke testified that the
loader would travel on the ramp multiple times during each shift, and that,
without berms, there was a heightened risk that fatal injuries would occur due
to a rollover accident. Tr. 327. A fatality could occur due to a fatal neck
injury if the loader overturned. Tr. 328. Inspector Burke also testified about
fatalgrams relating to overturned vehicles in which there was no berm in place.
Tr. 329; Ex. P-50; Ex. P-51. Relating to negligence, he stated that he
characterized the negligence as moderate because the operator stated that he
was never told about berms, but it was the Inspector’s understanding that the
operator had been on mine sites in the past. Tr. 335. As for the S&S
designation, the Inspector stated that he found it to be S&S because the
ramp was traveled on multiple times a day, the tracks were close to the sides,
and the drop off was dangerous, making a fatal injury reasonably likely. Tr. 328-29.
Also, when the loader is in operation and the bucket is raised, the bucket may
block the driver’s vision, making a roll-over more likely. Tr. 341. He also
stated that, for each of the berm-related citations, the reasoning underlying
negligence, injury, likelihood, and S&S designation were all the same.[22]
Tr. 330.

Mr. Duquette testified that the ramp was
sufficiently wide that the loader falling off the side was unlikely. The
Inspector did not agree. Tr. 341. He stated that the loader would have six to
eight feet on either side of it when it was going up the ramp. Tr. 352. The
loader in question is seven to eight feet wide. Tr. 358. The government did not
challenge Mr. Duquette’s assessment of the number of feet on each side of the
loader as being six to eight feet. Tr. 353. Inspector Burke had previously
testified that the tracks made by the loader were close to the edge, Tr. 328-29,
but it is unclear if that assessment is at odds with Mr. Duquette’s six to
eight feet estimation. Mr. Duquette also stated that he had no knowledge of the
berm requirement, Inspector Burke’s statements to the contrary notwithstanding.
He asserted that construction sites, as distinct from mining sites, are not
required to have berms, and on all of the jobs he had worked on, no stockpile
of material had ever been big enough to require a ramp. Tr. 350-51.

Citation
No. 8654133 concerns the sand stockpile ramp. The ramp was 50 feet long, 12
feet wide, and had a 14 foot drop off on both sides. Ex. P-26. When the screen
plant is running, the loader operator would drive up the ramp to the top of the
stockpile, and then dump its load of sand. Tr. 357. The operator abated the
citation by barricading the stockpile so that the loader could no longer drive
up the ramp. Tr. 360; Ex. P-26.

Mr.
Duquette stated that the Inspector’s measurement of the ramp was too narrow. He
asserted that the Inspector measured from track to track, not to the edges of the
ramp, which would have made the ramp 14 feet wide. Tr. 366. Mr. Duquette also
stated that the loader falling off of either side was not as likely as the
Inspector seemed to think, since there were three to four feet on either side
of the loader. Tr. 364, 367.

Citation
No. 8654134 concerns the two inch crushed gravel stockpile ramp. The ramp
was 27 feet long and 12 feet wide, with a 10.5 foot drop-off on both sides. The
citation was also abated by barricading the stockpile. Tr. 368-69; Ex. P-27. Mr.
Duquette testified that even though Duke’s Sand & Gravel had been
“operating” for five months, actual mining operations had only been occurring
for about thirty days. Tr. 372. At the time of the inspection, he had yet to
even sell any material. Tr. 376.

Citation
No. 8654135 concerns the two inch stone stockpile elevated ramp, measuring
approximately 35 feet long and 12 feet wide, with an 11 foot drop off. Tr. 377-78;
Ex. P-28. The citation was abated by barricading the ramp. Tr. 378. Mr. Duquette
asserted the same arguments that he made with regard to the previous
berm-related citations. Tr. 380.

Citation
No. 8654136 concerns the three inch stone stockpile ramp, which measured
approximately 50 feet long and 12 feet wide, with a 12 foot drop-off on both
sides. To abate the citation, access to the stockpile ramp was barricaded. Tr. 382.

Determination
of the Court

The
Court agrees with the Secretary’s determination of negligence and S&S determinations
for all but one of the citations. With respect to Citation No. 8654132, the
Court finds that injury was unlikely due to the width and relatively short
length of the ramp. It was 31 feet wide and 33 feet long. The eight foot
loader, driving up the middle of the ramp, would have 11.5 feet on either side.
Furthermore, there is not much length over which the loader operator could
drift toward one side or the other. Because the Court finds that injury was
unlikely to occur, the Court also finds that the violation was not S&S.

However, with respect to the other
citations, the width of the ramps left only two to three feet on either side of
the ramp. The lack of berms on these ramps contributed to a roll-over hazard
that was reasonably likely to cause a fatal or other serious injury. Apart from
that finding, the Court finds that there were mitigating circumstances that
warrant reduction of each of these penalties from the amounts proposed. First,
the loader operator is the only person using these ramps. This mine is not a
highly trafficked area, so injury is somewhat less likely to occur. The Court
also credits Mr. Duquette’s testimony that he had no knowledge of the berm
requirement as somewhat mitigating his negligence in this instance.

Negligence and gravity represent but two
of the six criteria that are to be evaluated in assessing any penalty. Although
negligence and gravity appear, by their nature, to be the more serious factors,
Congress did not elevate any particular criteria over another. By not so
weighing those factors in the statute itself, it is reasonable to deduce that
Congress left it to the Commission, guided by the particular facts surrounding
a violation, to make an individualized determination as to the relative
weighing of the criteria. The Commission has recognized this principle, noting
that “Judges have discretion to assign different weight to the various factors,
according to the circumstances of the case.” Lopke Quarries, Inc., 23
FMSHRC 705, 713 (July 2001).

As alluded to above, in this instance
the Court has determined that Duke Sand & Gravel’s absence of any history
of violations, the appropriateness of a penalty to the size of this one person
operation and the extraordinary efforts it made in abating the violations, all
operated to lower the penalties from the amounts proposed by the Secretary.

Accordingly, for Citation No. 8654132,
the Court imposes a penalty of $100.00. For Citation Nos. 8654133,
8654134, 8654135, and 8654136, the Court imposes a penalty of $143.00
each.

Citation
No. 89654137[23]

No
dump site restraint on sand stock pile

Section 104(a) Citation No. 8654137
alleges that Duke’s Sand & Gravel violated 30 C.F.R. § 56.9301, which
states that “[b]erms, bumper blocks, safety hooks, or similar impeding devices
shall be provided at dumping locations where there is a hazard of overtravel or
overturning.” DS&G was cited under this standard because no dump site
restraint was provided at the top of the sand stockpile ramp, which, as
previously stated, measured 14 feet high. Ex. P-30. The Inspector originally
found that injury was reasonably likely to occur and result in lost workdays or
restricted duty, the violation was significant and substantial, and the
operator’s negligence was moderate. Ex. P-30. He later reduced the likelihood
to unlikely and dropped the significant and substantial designation. Ex. P-30. The
operator abated the citation by barricading the ramp. Ex. P-30.

A
dumpsite restraint is effectively a berm placed at the end of a ramp to provide
a warning to a vehicle operator that he is approaching the edge. Tr. 386. The
ramp at issue would be traveled multiple times per shift. Tr. 387. The Inspector
thought any injury would result in lost workdays or restricted duty because, in
the event that the loader went past the end of the ramp, he thought that it
would not turn over but instead that it would “probably jar the operator  . . .
quite a bit to where he could receive cuts, bruises, whiplash, that type of
injury.” Tr. 388.  He cited the operator for moderate negligence because “the
operator wasn’t aware of the standard[, h]e thought the end travel would be
slow[, and h]e thought there was a restraint in place.” Tr. 391. Mr. Duquette
testified that a loader operator knows not to drive to the edge of the ramp. Tr.
395.

Determination
of the Court

The
Court agrees with the Secretary’s characterization regarding negligence,
likelihood, and injury, but upon factoring the other statutory criteria imposes
a penalty of $75.00 for this violation, Citation No. 89654137.

Citation
No. 8654138[24]

Overhang
on north sand pit

Section
104(a) Citation No. 8654138 alleges that Duke’s Sand & Gravel violated 30
C.F.R. § 56.3131, which states:

In places where
persons work or travel in performing their assigned tasks, loose or
unconsolidated material shall be sloped to the angle of repose or stripped back
for at least 10 feet from the top of the pit or quarry wall. Other conditions
at or near the perimeter of the pit or quarry wall which create a
fall-of-material hazard to persons shall be corrected.

DS&G
was cited under this standard because a protruding overhang existed on the
north sand pit face with loader track and bucket dig marks underneath it. Ex. P-32.
The Inspector found that injury was reasonably likely to occur and result in a
fatality, the violation was significant and substantial, and the operator’s
negligence was moderate. Ex. P-32. The citation was abated by taking an
excavator to the top of the wall and pushing the material down. Tr. 429.

Inspector
Burke testified that the loader operator told him that he was digging into the
sand face to try to get the overhang to fall down. Tr. 422. The material is
dangerous because, if the loader is working beneath it, the material can fall
on top of the loader. Tr. 422. The face of the wall was twenty feet high, and
the amount of material that was at risk of falling was about “five or six dump
truck loads.” Tr. 423. Consequently, if the loader was attempting to take down
the overhang from underneath it, it would “inundate a loader cab or an
excavator cab, coming through the windows and creating body crushing injuries.”
Tr. 427. Such an injury is reasonably likely to occur due to the
unpredictability of the sand and the loader operating underneath the pile for
the duration of a shift. Tr. 428.

Mr.
Duquette testified that he informed the Inspector at the time of the citation
that this part of the mine was inactive. Tr. 434. Although his employee had
been over there attempting to bring down the overhang, Mr. Duquette stated that
he did not tell the employee to do so, and the employee should have known not
to operate under the overhang. Tr. 434, 438. He stated that the part of the
wall with the overhang was made of “pond sand,” which “nobody really wants,” so
there would be no reason for his employee to be over there. Tr. 442. On
cross-examination, the Secretary elicited testimony creating an inference that,
due to poor training, the employee did not know to avoid the area with the
overhang. Tr. 439.

Determination
of the Court

The
Court upholds the violation, and crediting the Inspector’s testimony, assesses,
upon consideration of each of the statutory criteria, a civil penalty in the
sum of $200.00.

Citation
No. 8654139[25]

Failure
to post stop sign and speed limit sign

Section 104(a) Citation No. 8654139
alleges that Duke’s Sand & Gravel violated 30 C.F.R. § 56.9103, which states
that “[r]ules governing speed, right-of-way, direction of movement, and the use
of headlights to assure appropriate visibility, shall be established and
followed at each mine.” DS&G was cited under this standard because it did
not post a stop sign at the end of the mine road abutting a state highway, and
it did not post a speed limit sign for the mine road. Ex. P-34. The Inspector
originally found that injury was reasonably likely to occur and result in a
fatality, the violation was significant and substantial, and the operator’s
negligence was moderate. Ex. P-34. He later reduced the likelihood to unlikely
and dropped the significant and substantial designation. Ex. P-34. The operator
abated the citation by posting signs. Ex. P-34.

The
Inspector stated that Route 8, to which the mine road leads, is a heavily
traveled, two-lane state highway. Tr. 444. There was no stop sign directing
vehicles exiting the mine. Tr. 445. He characterized the injury as fatal
because any passenger car that collided with a dump truck exiting the mine
would do so at a speed of 45 to 50 miles per hour. Tr. 445. He adjusted the
likelihood to unlikely, however, because only the Inspector, Mr. Duquette, and
Mr. Duquette’s service pickup were accessing the road—the employee did not have
a vehicle. Tr. 446. Inspector Burke assessed the negligence as moderate because
Mr. Duquette said that he had not considered putting a sign up, but he thought
that it was a good idea. Tr. 447.

Determination
of the Court

The
Court agrees with the Secretary’s determination of negligence, likelihood, and
injury, but finds that not only was such an injury unlikely, it was so unlikely
as to warrant a reduction in the penalty. The Court imposes a penalty of $50.00
for Citation No. 8654139.

Citation
No. 8654140[26]

Section 104(a) Citation No. 8654140
alleges that Duke’s Sand & Gravel violated 30 C.F.R. § 56.20008(a), which
states that “[t]oilet facilities shall be provided at locations that are
compatible with the mine operations and that are readily accessible to mine
personnel.” DS&G was cited under this standard because it did not have any
toilet facilities. Ex. P-36. The Inspector originally found that injury was
reasonably likely to occur and result in lost workdays or restricted duty, the
violation was significant and substantial, and the operator’s negligence was
moderate. Ex. P-36. He later reduced the likelihood to unlikely and dropped the
significant and substantial designation. Ex. P-36. The operator abated the
citation by providing a portable toilet. Ex. P-36.

Inspector
Burke stated that there were no toilet facilities at the mine site. Tr. 453. Instead,
the employee would go to McDonald’s (a mile away) or a nearby hobby store (half
a mile away). Tr. 454-55. The Inspector stated that he thought an
injury/illness due to the violation could result in lost workdays because the
employee would go into the woods to relieve himself, rather than going to
McDonald’s, would not wash his hands, and may be exposed to poison oak, poison
sumac, or poison ivy. Tr. 457. The Inspector found that the operator was
moderately negligent because the operator thought that the McDonald’s was close
enough. Tr. 461.

Determination
of the Court

The
Court agrees with the Secretary’s determination that injury was unlikely and DS&G’s
negligence was moderate. But, as the Court stated in the hearing, Tr. 457-58,
the injury that would reasonably be expected would be so minor as to result in
no lost workdays. Based on the 110(i) factors, the Court imposes a penalty of $25.00.

Citation
No. 8654141[27]

Failure
to record workplace examinations

Section 104(a) Citation No. 8654141
alleges that Duke’s Sand & Gravel violated 30 C.F.R. § 56.18002(b), which
states that “[a] record that [daily workplace] examinations were conducted
shall be kept by the operator for a period of one year, and shall be made
available for review by the Secretary or his authorized representative.” DS&G
was cited under this standard because it did not record workplace exams prior
to the inspection. Ex. P-38. Since this was a paperwork violation, the Inspector
found no likelihood of injury, but assessed the negligence as moderate. Ex. P-38.
The operator abated the citation by recording a workplace exam. Ex. P-38.

A
workplace exam is a daily inspection. Tr. 466. An operator or a designated
“competent person” should look at the entire area, including the equipment, for
unsafe or hazardous conditions. Tr. 467. The Inspector designated the
negligence as moderate because he thought that if the operator inspects other
equipment he has, such as dump trucks and service trucks, “why wouldn’t he
inspect the rest of the stuff on the mine site?” Tr. 469. Mr. Duquette
testified that he performed workplace exams, but he didn’t know the terminology
or about the recording requirement in the regulations. Tr. 471.

Determination
of the Court

The
Court agrees with the characterizations of the Secretary, but the operator’s
lack of knowledge of the recording requirement warrants a lower penalty than
that assessed by the Secretary. For much the same reasoning as that stated in
the determination of the penalty for Citation No. 8654123, the Court imposes a
penalty of $25.00 for Citation No. 8654141.

However,
Mr. Duquette is again advised that in future Mine Act litigation, the Court’s
indulgence, as reflected in the civil penalty reductions it has imposed in this
instance, and owing to the special circumstances of DS&G’s first
inspection, should not be presumed. Each case and each alleged violation stands
on its own, but the history of violation will of necessity be different in
future cases and the evaluation of the other factors, depending on the
particular facts, may be less forgiving as well. Any notion that merely
invoking the right to a hearing will result in reduced penalties is not sound,
as the findings of fact may prompt the Court to adopt, lessen or increase,
penalties where a violation is established.

Citation
No. 8654142[28]

Failure
to develop and implement a HazCom program

Section
104(a) Citation No. 8654142 alleges that Duke’s Sand & Gravel violated 30
C.F.R. § 47.31(a), which states that operators must “[d]evelop and implement a
written HazCom program.” DS&G was cited under this standard because it did
not have such a program. Ex. P-40. The Inspector originally found that injury
was reasonably likely to occur and would be permanently disabling, the
violation was significant and substantial, and the operator’s negligence was
moderate, but later reduced the likelihood to unlikely and removed the S&S
designation. Ex. P-40. The operator was given a generic HazCom plan, abating
the citation. Ex. P-40.

A
Hazard Communication (HazCom) program at a single-operator mine like Duke’s
Sand & Gravel must include a statement of how the program is put into
practice, material safety data sheets (MSDSs) available for miners, and a list
of all hazardous chemicals at the mine. 30 C.F.R. § 47.32(a), (b). The MSDSs
contain firefighting and first aid information for the hazardous chemicals at
the site. Tr. 477.

At Duke’s Sand and Gravel, the operator
had “diesel fuels, gas-operated pick-ups, [and] certain greases, [and] lubricants.”
Tr. 477. The Inspector found that injury was unlikely because there were few
chemicals at the mine, Tr. 478, but that injury would be permanently disabling
because if “any of the oils or greases . . . contacted the eyes or [were]
ingested, the proper first aid treatment may not have been given,” which would
exacerbate any injuries. Tr. 478. The Inspector characterized the negligence as
moderate because the operator did not think there were any hazardous chemicals
at the mine site. Tr. 479. Inspector Burke also testified that any “hazardous
materials” at the mine site could be found in somebody’s garage at their home
or at businesses other than mine sites. Tr. 488.

Determination
of the Court

The
Court agrees that an injury from this violation could reasonably be expected to
be permanently disabling, but that any injury would be unlikely. Not only are
the chemicals at the mine site common ones, there are so few chemicals stored
at the mine site that injury from them and exacerbated by the lack of an MSDS
would be quite unlikely. Based on this and the other 110(i) factors, the Court
assesses a penalty of $50.00 for Citation No. 8654142.

Citation
No. 8654143[29]

Failure
to develop and implement a written training plan

Section 104(a) Citation No. 8654143
alleges that Duke’s Sand & Gravel violated 30 C.F.R. § 46.3(a), which
states that operators must “[d]evelop and implement a written plan, approved by
[MSHA], that contains effective programs for training new miners and newly
hired experienced miners, training miners for new tasks, annual refresher
training, and site-specific hazard awareness training.” DS&G was cited
under this standard because it did not have such a program. Ex. P-42. The Inspector
found that injury was unlikely to occur and would result in lost workdays or
restricted duty, and the operator’s negligence was moderate. Ex. P-42. The
operator was given a generic training plan, abating the citation. Ex. P-42.

For
sand and gravel operators, the plan does not have to be filed with MSHA. Tr. 493.
Instead, inspectors ask to see the plan when they inspect the mine. Tr. 493. Mr.
Duquette did not have a training plan implemented at the mine, but the Inspector
found that he did provide task training to his employee, so injuries were
unlikely to occur. Tr. 493-94. He characterized the negligence as moderate
because Mr. Duquette attempted to contact MSHA but did not know that a training
plan was necessary. Tr. 494. Mr. Duquette testified that he had no knowledge of
the training plan requirement; if he had, he would have implemented one. Tr. 497.

Determination of the Court

The
Court disagrees with the Secretary’s characterization of this citation, but
finds that it was nevertheless violated. The Court instead views this as a
paperwork violation. The operator failed to have a plan in place, and the
citation was abated when the Inspector gave Mr. Duquette a generic training
plan. Abatement of the citation did not require the operator to actually train
his employee. Consequently, the Court finds no likelihood of injury. Any injury
that might occur would result from the operator’s failure to actually train
its employee, for which the operator was already cited. The Court assesses a
penalty of $50.00 for Citation No. 8654143.

ORDER

Based on the criteria in section 110(i)
of the Mine Act, 30 U.S.C. § 820(i), the Court assesses the following penalties
for the citations and order discussed above:

Citation/Order
No.                     Assessment                                    8654122          $50.00

8654123                                               $50.00

8654124                                               $50.00

8654125                                               $50.00

8654126                                             $143.00

8654127                                               $50.00

8654128                                             $200.00

8654129                                               $50.00

8654130                                               $25.00

8654131                                             $270.00

8654132                                             $100.00

8654133                                             $143.00

8654134                                             $143.00

8654135                                             $143.00

8654136                                             $143.00

8654137                                               $75.00

8654138                                             $200.00

8654139                                               $50.00

8654140                                               $25.00

8654141                                               $25.00

8654142                                               $50.00

8654143                                               $50.00

Total:                                              $2,085.00

It is ORDERED that the operator
pay a penalty of $2,085.00 within 30 days of this order.[30] Upon receipt of
payment, this case is DISMISSED.

/s/ William B.
Moran

William
B. Moran

Administrative
Law Judge

Distribution:

Laura
Ilardi Pearson, Trial Attorney, U.S. Department of Labor, MSHA Backlog Project,
1244 Speer Boulevard, Suite 216, Denver, CO 80204

John
Duquette, Jr., Duke’s Sand & Gravel, 537 Ashland St., North Adams, MA,
01247

[1] The Secretary
proposed a total penalty of $3,514.00 for the twenty-two violations. For thirteen
(13) of those, $100.00 was proposed, another eight (8) were assessed at $243.00,
and one proposed at $270.00.

[2] Though the
quoted language unmistakably sets forth the Commission’s role, that body went
on to add that “the Commission's Procedural Rules specifically state that, ‘In
determining the amount of penalty, neither the Judge nor the Commission shall be bound by a penalty proposed by the
Secretary . . .’ 29 C.F.R § 2700.30(b). Nor was the Judge bound by the
Secretary's definition of ‘high negligence’ set forth in section 100.3(d). See,
e.g., Jim Walter Res., Inc., 36 FMSHRC 1972, 1975 n.4 (Aug. 2014)
(‘We reject the Secretary's argument that the Commission must apply the
standard of care set forth in 30 C.F.R. § 100.3(d) in considering whether [the
operator] was negligent’); Deshetty, emp. by Island Creek Coal Co., 16
FMSHRC 1046, 1053 (May 1994).”

[3] As MSHA
concedes, this mine is a one person operation. See, e.g., Tr. 152, 170,
220.

[4] Mr. Duquette
was also specifically advised that, as this was the first MSHA Inspection he
has ever had, the Court could take that novice status into account, but that
such a view would not be available for subsequent inspections as the mine
operator could no longer assert ignorance of its mine safety and health
obligations. Tr. 34. In contrast, the Secretary maintained that Mr. Duquette
engaged in “willful ignorance” of his obligations. Tr. 36.

[5] Since these
three factors are common to all of the citations and the order, the Court
incorporates them into the penalty assessment for each violation.

[6] At the time of
the hearing, Inspector Burke had been with MSHA for ten years. Tr. 45. Prior to
his time at MSHA, he worked for ten years for a sand and gravel operation. Tr. 45.
Inspector Burke also had a journeyman electrician’s license, which he used to
perform electrical work on crushers and screen plants. Tr. 45-46.

[7] As a point of
reference only, as penalties are assessed by the Court on the basis of the
statutory criteria, the proposed penalty under Part 100 is listed for each
section 104(a) citation. For Citation No. 8654122, $100.00 was proposed.

[8] For the lone
order in this docket, MSHA did not apply a percentage reduction for good faith.

[9] The Court
incorporates its determination of DS&G’s good faith for each of the 22
litigated matters.

[10] The proposed
assessment was $100.00.

[11] The proposed
assessment was $100.00.

[12] The proposed
assessment was $100.00.

[13] Also known as
missing knock out seals, as described by the Secretary’s attorney. Tr. 173-174.

[14] This citation
was assessed at $243.00.

[15] The proposed
assessment was $100.00.

[16] This citation
was assessed at $243.00.

[17] The proposed
assessment was $100.00.

[18] The proposed
assessment was $100.00.

[19] At $270.00,
this Order was the highest of the proposed penalties in this docket.

[20] At the hearing
and in his post-hearing brief, the Secretary admitted uncertainty as to whether
the miner was a newly hired experienced miner, whose training is governed by §
46.6, or as simply a new miner, whose training is governed by § 46.5. Sec’y’s
Post-Hearing Br. 15-16. As noted, DS&G did not meet either standard’s
requirements.

[21] Each of these
five listed citations had proposed assessments of $243.00.

[22] For that
reason, the Court will consider and incorporate such reasoning with respect to
each berm-related citation.

[23] The proposed
assessment was $100.00.

[24] This citation
was proposed at $243.00.

[25] The proposed
assessment was $100.00.

[26] The proposed
assessment was $100.00.

[27] The proposed
assessment was $100.00.

[28] The proposed
assessment was $100.00.

[29] The proposed
assessment was $100.00.

[30] Payment should
be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR,
PAYMENT OFFICE, P.O. BOX 790390, ST. LOUIS, MO 63179-0390