Ezel / Agency Decisions / york-2016-20-m-alj
FMSHRC ALJ decision Docket YORK 2016-20 M Decided April 7, 2017 Mixed result Judge David F. Barbour

Secretary of Labor v. Newmont Slate Company, Inc.

Secretary of Labor v. Newmont Slate Company, Inc. (FMSHRC YORK 2016-20 M): Fifteen citations upheld and one vacated

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This order from 2017 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current MSHA standards and Commission precedent, with citations.

Currency note: this decision dates from 2017
The MSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Final order, not Commission precedent
This amended decision by a FMSHRC Administrative Law Judge replaced the March 30, 2017 version and became the final decision of the Commission 40 days after issuance because the Commission did not direct review (30 U.S.C. § 823(d)(1)). It binds the parties but is not binding on the Commission in other cases. The full text below is from the official FMSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the Commission's own document.
Read the official release (fmshrc.gov)

Plain-English summary

MSHA issued Newmont Slate 16 citations covering fire and explosion warnings, compressed-air tanks, electrical circuits, machine guards and windows, explosives, training, noise records, and other quarry conditions. After a hearing, Judge David F. Barbour found 15 violations and vacated the citation alleging defective explosive material because the Secretary did not prove the material was deteriorated or damaged. He modified several gravity or negligence findings, removed an S&S designation from one cracked-window citation, and affirmed a separate cracked-window citation as S&S. Seven citations were uncontested and their proposed penalties were assessed. This amended decision corrected clerical errors in the original penalty figures and ordered Newmont to pay $4,462 in total.

Decision snapshot

  • Cited standards: 30 C.F.R. Parts 46, 56, and 62
  • Outcome: Fifteen citations were affirmed or modified, one explosives citation was vacated, and total penalties of $4,462 were assessed.
  • Key point: The Secretary must prove the cited condition for each violation, while penalty and designation findings turn on the specific hazard, likelihood, and operator knowledge shown in the record.

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:
202-434-9958 / FAX: 202-434-9949

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner,

v.

NEWMONT
SLATE COMPANY, INC.,

Respondent.

CIVIL
PENALTY PROCEEDING:

Docket
No. YORK 2016-20-M

A.C.
No. 43-00011-393999

Mine:
Newmont Slate Co.

AMENDED DECISION [1]

Appearances:               Emily
B. Hays, Esq., U.S. Department of Labor, Office of the Solicitor, Denver,
Colorado for Petitioner

John
Williams, President, Newmont Slate Company, Inc., West Pawlet, Vermont for Respondent

Before:                        Judge
Barbour

In this civil penalty proceeding arising
under sections 105 and 110 of the Federal Mine Safety and Health Act of 1977,
as amended, 30 U.S.C. §§ 815, 820 (2012) (the “Mine Act”), the Secretary of
Labor on behalf of his Mine Safety and Health Administration (“MSHA”) petitions
for the assessment of civil penalties for 16 violations of mandatory safety,
health, and training standards found in Parts 56, 46 and 62 of Title 30 Code of
Federal Regulations. The violations are alleged to have occurred at a slate
quarry and mill owned and operated by Newmont Slate Company, Inc. (“Newmont”). At
the facility slate is quarried and then cut and shaped into shingles used
primarily for roofing and cladding. Newmont is one of the few companies in the
United States that does such work.

The citations were issued by MSHA
Inspector John Burton who made findings regarding the existence of the alleged
violations, the gravity of the violations and the negligence of the company. [2]
Burton also found that three of the alleged violations were significant and
substantial contributions to mine safety hazards (“S&S violations”). The
Secretary proposed civil penalties that in the aggregate total $6,002.00. Newmont
contested the violations and the proposed penalties asserting that some of the
violations did not occur or if they did that Burton’s findings and many of the
proposed penalties were not justified by the facts.

After the chief judge assigned the case
the court issued an order requiring the parties to confer to determine if they
could resolve their differences. When they could not the court asked a special
counsel to intervene in the hope that an independent and impartial official
could facilitate a settlement. When counsel’s efforts failed the court
scheduled a hearing in Rutland, Vermont. The Secretary was represented by
counsel. The company was represented by its president, John Williams. [3]

Prior to going on the record the court
asked the parties to make a final attempt to reach an agreement on the case or
at least to resolve their differences with regard to some of the alleged
violations. The parties conferred, but again were unable to come to an
understanding, and the case then went forward. Tr. 9-10.

AGREED UPON
FACTS AND CONCEDED VIOLATIONS

Prior to hearing the witnesses, counsel
for the Secretary reported that she and the company agreed upon several
relevant facts, namely:

  1. When the subject
    citations were issued, the company was subject to

the jurisdiction
of the Mine Act.

2.  The company engaged in slate mining
operations at the subject

mine.

3      The company’s mining operations
affected interstate commerce.

4      At all times relevant the company
[was] an “operator” as defined in

section 3(d) of
the Mine Act.

5      Inspector Burton was acting in
his official capacity as a duly

authorized representative of the
Secretary when he issued

the subject citations.

6        
The
proposed penalties will not affect the company’s ability to

remain in
business.

Tr.
17-18, 21.

After stating his agreement with the
facts, Williams advised the court that through his better understanding of the
assessment and contest processes there were several citations he could accept
as written, or, as Williams put it, he could “skip right over.” Tr. 20. As
further explained below, ultimately Williams withdrew Newmont’s contests of
seven citations. See “ The Uncontested Citations,” infra.

THE
CONTESTED CITATIONS

CITATION NO.                     DATE              30
C.F.R. §      PROPOSED ASSESSMENT

8917961                          
8/25/15      56.4101                     $263

The
citation states:

There
were no signs readily visible prohibiting open flame or

smoking
or open flames at the 4 propane tanks [at] the west side

yard
area of the mill. The propane tanks supply propane to the

mill
building and miners transport and cleave slate in the west

side yard area
of the mill. This condition exposes a miner to a

fire/explosion
hazard. In the event an accident were to occur it

would be likely
that fatal injuries would be expected.

Gov’t Exh.9 at

  1. The citation contains the inspector’s findings that the cited condition was
    unlikely to lead to a fatal injury and was due to the company’s low negligence.

In
August 2015 Burton was assigned to inspect Newmont’s quarry. Although he had
inspected other slate quarries, the August inspection was his first visit to Newmont’s

facility. [4]
Tr. 40. Burton began the inspection on August 25. Burton had been conducting
inspections on his own for about 18 months. Tr. 70. When Burton arrived the
mine was operating and production was ongoing. Tr. 62. During the inspection
Burton was accompanied by Albert Gallupe, Newmont’s maintenance foreman. Id.

Among
the first things Burton observed were four propane tanks on the west side of
the mill building. Burton looked but saw no signs prohibiting open flames or
smoking in the vicinity of the tanks. Tr. 50. Burton described mandatory safety
standard section 56.4101 (30 C.F.R. § 56.4101) as requiring “a mine operator
[to] post readily visible signs where a . . . fire [and/or] explosion hazard
exists.” Tr. 50-51.

Burton
explained that the tanks supply propane to the mill where miners cleaved slate
into shingles. [5]
No signs were posted on the tanks or in the area of the tanks warning miners of
a fire or explosion hazard. Tr. 51. Burton found that the lack of signs
constituted a violation of section 56.4101. See Gov’t Exh. 9 at 3. However,
he also found that it was unlikely the company’s failure to post the signs
would result in an accident. Still, if the gases in one of the tanks “were to
vent” (meaning were to escape the tank) and to do so in the vicinity of an open
flame, a fatal accident could occur. [6]
Tr. 54. Burton stated that even though, “There were no open flames or sparking
materials observed in or around the . . . tanks[,]” (Tr. 52) if an accident
occurred, “the fireball and flying projectiles that would come from the steel
tank would be expected to kill a miner.” Id. ; see also Tr. 130. Burton
testified that only one person was subject to the hazards of a tank explosion,
the person who regularly cleaved the slate. Tr. 55. He noted however that the
area was traveled, albeit not regularly, by other miners in mobile equipment.
Tr. 56 ( referencing Gov’t Exh. 9 at 4.), 58.

Burton
found that Newmont’s negligence was low. He acknowledged that Newmont
management officials did not travel the area on a regular basis. He was of the
view that the officials might not have been aware of the absence of the
required signs. This was especially true since the area was not required to be
pre-shift or on-shift examined on a regular basis. Tr. 58. To abate the alleged
violation the company placed a sign stating “No Smoking –Danger” at the edge of
the road adjacent to the tanks. Tr. 64; Gov’t Exh. 9 at 4.

For
his part Williams maintained that miners would recognize the propane tanks for
what they were and would know not to have open flames or lighted cigarettes
around them. Therefore, in William’s opinion a fatal accident was very
unlikely. See, e.g., Tr. 76.

THE
VIOLATION, ITS GRAVITY AND NEWMONT’S NEGLIGENCE

Section
56.4101 states, “Readily visible signs prohibiting smoking and open flames
shall be posted where a fire or explosion hazard exists.” Burton’s unrefuted
testimony established the violation. A precondition for posting the required
signs is a “fire or explosion hazard.” It is common knowledge that propane is
highly flammable and explosive and as Burton stated, if the gases in any one of
the tanks “were to vent” an open flame could spark an explosion. Tr. 54. The
record supports finding the propane was regularly used in the process of
cleaving slate in the mill and mill yard. Tr. 55. While it is true that Burton
saw no open flame or flames in the vicinity of the tanks ( Id.), without
a warning sign or signs there was the potential hazard of a miner using flame
producing equipment ( e.g. , welding) or of lighting a cigarette
dangerously near the tanks. If one or more of the tanks vented the gas could
ignite and a catastrophic explosion could result. The court credits Burton’s
testimony that such an event would likely result in a fatality. Tr. 130. Because
of the grave consequences, the court concludes that violation was moderately
serious, even though a resulting fire or explosion was unlikely given the small
chance of a tank venting and of an ignition source being in the area. [7]

Burton
found that Newmont’s negligence was low and the record supports the finding. Burton’s
testimony that the area containing the propane tanks was not subject to regular
pre-shift or on-shift examination and management officials did not travel past
the tanks frequently was not contradicted. Tr. 58. Given this, it would have
been easy for the company frequently to fail to note and correct the lack of
warning signs.

CITATION NO.         DATE             
  30 C.F.R. §                PROPOSED ASSESSMENT

8917962                     8/25/15           
 56.13011                             $585     

The
citation states:

There
were two air receiver tanks . . . that did not have

automatic relief
valves or pressure gauges installed. First

a blue Emglo 50
gallon air tank was connected to the air

compressor in
the yard splitting area. Second a 30 gallon

air tank was
mounted to air compressor c9804 in the

quarry. Both air
tanks did not have automatic pressure

relief valves or
an air pressure gauge installed on the air

tanks. This
condition does not allow a miner to know how

much air is
inside the portable air tanks nor does it allow the

tank to vent if
the maximum allowable working pressure is exceeded

creating and
exploding of a pressure vessel hazard [( sic. )]. In the

event an
accident were to occur it would be likely that a fatal

injury would be
expected.

Gov’t Exh.10 at

  1. The citation contains the inspector’s findings that the cited condition was
    unlikely to lead to a fatal injury and was due to the company’s moderate
    negligence.

Burton
issued the citation because, “There were two receiver tanks at the mine that
were not equipped with safety valves or pressure gauges.” Tr. 84. Burton found
the condition violated section 56.13011, which states that such tanks “shall be
equipped with one or more automatic pressure relief valves” and that “[a]ir
receiver tanks also shall be equipped with . . . pressure gauges.” 30 C.F.R. § 56.13011;
Tr. 84. Burton testified the words “shall” as used in the standard mean that
the presence of pressure relief valves and gauges on the tanks are mandatory. Id.
Burton maintained that one of the air tanks (the Emglo 50 gallon tank) was
connected to an air compressor in the slate splitting area of the mill yard
(also known as the slate cleaving area). The tank was not equipped with a
pressure relief valve or a pressure gauge. Tr. 85. He further testified that he
saw another air tank that was mounted on an air compressor. That tank, like the
Emglo 50 gallon tank, did not have a pressure relief valve or a pressure gauge.
Id. The two tanks were approximately 700 to 1000 feet apart. Id.

Burton
identified a photograph of the Emglo 50 gallon tank and circled two ports on
the tank where a pressure relief valve should have been located. Tr. 86; Gov’t
Exh. 10 at 3. Burton also identified a photograph of the air receiver tank that
was mounted on an air compressor. Gov’t Exh. 10 at 4. Neither a pressure relief
valve nor a pressure gauge was present. Tr. 92. On the photograph Burton
circled the ports where the relief valve and the pressure gauge should have
been. Tr. 91-92; Gov’t Exh. 10 at 4. Burton explained that the valves protected
against the tanks exploding if they were “over pressured” (Tr. 86), and the
gauges insured miners knew the tanks contained the right amounts of air. (Tr.
87).

In
Burton’s opinion both tanks presented with two conditions that violated section
56.13011. The tanks had no pressure relief valves and no pressure gauges. Tr.
88-89. Burton explained that the relief valves and pressure gauges are
sometimes combined as a single piece of equipment and sometimes they are two
separate pieces of equipment. Tr. 90-91. However, neither tank had either
configuration.

Burton
found that an injury was unlikely to occur as a result of the missing valves
and gauges. Tr. 93. He noted the Emglo 50 gallon tank had a cracked air valve. Because
of this it was operated at a lower air pressure than otherwise would have been
the case. Tr. 93. Nonetheless, if either of the tanks became over pressurized
and exploded, flying shrapnel could easily kill a miner. Tr. 95; Gov’t Exh. 10
at 1. Burton believed the persons most likely to be affected were miners who
used the tanks to cut slate. Tr. 96. He concluded that the hazard was enhanced
by the fact that both tanks were portable. They “could be moved anywhere on the
mine site” and could be used by a miner who was not familiar with the equipment . . Tr. 121, see also Tr. 125, 128.

Burton
found that the company was moderately negligent. Gov’t Exh. 10 at 1. He based
his finding on the fact that a miner told him it was permissible to operate the
tanks without the valves and gauges because the tanks were usually connected to
a “regulated compressor” and the regulated compressor system contained the
required valves and gauges. Tr. 96. Based on the miner’s statement Burton
concluded that mine management knew the condition existed. Id .

Williams
was able to provide more information regarding the operation of the tanks. He
explained that they were used to power a “rivet buster,” a pneumatic hammer
used to break slate. He agreed pressure relief valves and pressure gauges were
required but in his opinion their presence on the tanks was not mandatory. Rather,
he thought they could be located as part of the regulated compressor system. [8]
Tr. 103-04. Williams testified that the system’s compressor was located inside
the mill. The compressor was connected to the cited tanks with a three quarter
inch airline. Tr. 105. Although at the time of the inspection the Englo 50
gallon air tank was disconnected from the system and the air compressor was 400
feet away from the tank, Williams agreed that the tank could be moved and was
available for use. Tr. 115-16. The same thing was true of the other cited tank.
Tr. 116.

Williams
maintained there was no chance the cited tasks would explode because the air
pressure in the tanks was below the level necessary to cause their failure. Tr.

  1. While an “oddball tank” could be dangerous, he noted the cited tanks had
    been checked and tested prior to use to confirm their integrity. Tr. 106. Williams
    argued that although the standard refers to “tanks,” technology had advanced to
    the point where the standard should be revised to apply to “[a]ir receiver
    systems.” Id; See also Tr. 114. If the standard were reworded this way
    the company would be in compliance. Id. Nonetheless, Williams agreed
    that both of the cited tanks were air receiver tanks and that neither had a
    pressure relief valve and a pressure gauge on the tank. Tr. 109-10.

THE
VIOLATION, ITS GRAVITY AND NEWMONT’S NEGLIGENCE

The
court finds the violation existed as charged. The standard is clear. It states
that air receiver tanks “shall be equipped” with one or more automatic pressure
relief valves and with pressure gauges. 30 U.S.C. § 56.13011. As Burton
correctly noted, “shall be equipped” means that the specified items must be
present on the tanks. Tr. 84-85. Burton testified that the items were not
present on either tank (Tr. 85-86, 88-89, 91-92), and Williams agreed. Tr.
108-10.

While
there was a violation, the testimony leads the court to conclude the violation
was technical and that it presented virtually no hazard to the company’s
miners. Burton agreed with Williams that because the tanks were each part of a
system they had a PSI rating below the level that was necessary for the tanks
to pose an explosion hazard. Tr. 120-21. Moreover, according to Williams, there
were valves and gauges in the system which served the same purpose as valves
and gauges on the tanks. Tr. 106, 114. Williams’s suggestion that the standard
be revised to apply to “air receiver systems” rather than to tanks, was reasonable,
and it may well be that such a revision would provide miners with the same
level of protection as the present regulation.

Burton
was concerned about the portability of the tanks. He feared they could be moved
and used when not part of an overall system and thus be totally without the
protection afforded by the valves and gauges. Tr. 121, 125, 128. However, the
court notes that while Williams agreed such use was possible (Tr. 115-16),
there is nothing in the record to indicate it was likely. Rather, Williams’s
testimony establishes that the tanks were primarily used to provide pneumatic
pressure to the rivet buster and that when used this way the system of which
the tanks were a part was protected with the valves and gauges. Tr. 103-04. Further,
while Williams agreed that an “odd ball” tank could be dangerous, nothing in
the record indicates either of the cited tanks was structurally defective in a
way that posed a danger. For many of these reasons Burton found that it was
unlikely a miner would be injured due to the violation. Gov’t Exh. 10 at 1. The
court goes further and for all of these reasons finds that it was extremely
unlikely.

The
court also departs somewhat from Burton’s negligence finding. Burton believed
the company knew its tanks lacked the required valves and gauges because a
miner told him the tanks could be operated without that equipment since the
tanks were connected to a regulated compressor. Tr. 96. The court credits what
Burton was told, but unlike Burton the court concludes it significantly
mitigates the company’s negligence. The court finds that the miner was
conveying to Burton the same belief about which Williams testified, to wit that
if the required vales and gauges are a part of the system they are not required
on the tanks. Tr. 103-04, 114. The company’s belief, although mistaken, was
reasonable, and the court concludes that Newmont’s genuine, good faith belief
it was in compliance reduced the company’s otherwise moderate negligence to
low.

CITATION NO.                     DATE              30
C.F.R. §      PROPOSED ASSESSMENT

8917959                          
8/25/15      56.12018                   $585     

The
citation states:

There
were two circuit breaker panels . . . that had circuit breakers

that
were not labeled to show the units they controlled. First, the

main
mill, east splitting room circuit breaker had one 480 volt

30
amp breaker that was not labeled. Second, the new mill 480 volt

circuit
breaker panel had one 100 amp and one 15 amp circuit breaker

that
were not labeled. The circuit breakers were in the [“]on[”]

position. This
condition does not allow a miner to know which circuit

to de-energize
in an emergency. In the event an accident were to

occur it would
be likely that fatal injuries would be expected.

Gov’t
Exh. 7 at 1. The citation contains the inspector’s findings that the cited
conditions were unlikely to lead to a fatal injury and were due to the
company’s moderate negligence.

During
the course of his inspection Burton examined two circuit breaker panels that he
found to be defective. One panel was in the main mill. The other was in a
different mill, the “new mill.” Tr. 141; Gov’t Exh. 7 at 3. Each panel
contained circuit breakers that were not properly labeled. Tr. 139. Therefore, Burton
issued a citation to the company for violating section 56.12018, a mandatory
safety standard requiring “the identification of power switches.” Tr. 140, Gov’t
Exh. 7.

Burton
described the first circuit breaker panel as the panel containing the breakers
for the main mill’s east slate splitting room. In the panel there was one 480
volt 30 amp circuit breaker that was not labeled. Id. The unlabeled
circuit breaker was in the “on” position, which indicated to Burton that the
panel was energized. Tr. 141. The second panel was for the new mill building. It
too was a 480 volt panel. The second panel contained two unlabeled circuit
breakers, one for a 100 amp circuit and one for a 15 amp circuit. Tr. 140. These
breakers also were in the “on” position. Tr. 141, 144. Burton testified that
the lack of labels meant that a miner would not know which circuits to
de-energize in an emergency or which breakers to lock out when making repairs.
Tr. 141-42. Burton physically checked the unlabeled circuits with a “tick
tracer” and confirmed that power was flowing to each of the three unlabeled
circuits. [9]
Tr. 142, 143-44; See Gov’t Exh. 7 at 3, 4.

Section
56.12018 requires the identification of “principal power switches.” In Burton’s
view, both of the cited panels were principal power switches for the circuits
controlled by the circuit breakers. Tr. 163-64. He explained when electricity
enters the panels and comes to the circuit breakers, the breakers “[become] the
principal power switch[es] for[the] circuit[s] from the circuit breaker
panel[s] to the equipment.” Tr. 163-64. He stated, “[T]he power is subbed out
from the panel and it is branched down to that circuit breaker which is the
primary switch . . . for that circuit.” Tr. 155.

Burton
described the hazard posed by the lack of labeling. “An unlabeled circuit
breaker does not allow a miner to know which circuit to de-energize in an
emergency, and it also does not allow [a] miner to know which circuit to
de-energize, lock and tag out for repairs.” Tr. 141-42. However, Burton did not
believe the conditions were likely to result in an injury. He noted that both
panels were subject to main circuit breakers and that to de-energize the
circuits in either panel “a miner could go to the main and switch that main
breaker off in an emergency.” Tr. 149. Also, if work needed to be done on
equipment on any of the subject circuits a miner would likely call on an
electrician to do it. Referring the work to a knowledgeable electrician would
reduce the chance of injury. Tr. 149. Nonetheless, were an injury to occur, Burton
believed it was likely to result in a fatality. He noted that a “480 volt
electric shock is often associated with fatal-type injuries.” Tr. 150.

Burton
found the company was moderately negligent. There were numerous circuit breaker
panels at the mine and the company knew the requirements of the standard since
all but the cited circuits were labeled properly. Tr. 154. He also testified
that although the company subcontracted its electrical work, a management
official told him that the company did not follow up with the subcontractor to
ensure contracted electrical work was done correctly. [10]
Finally, there is a requirement that the panels be inspected and none of the
three unlabeled circuits was reported on a workplace examination report. Tr.
154-55.

Williams
testified there are three safety features on the cited circuits. There is the
main circuit breaker that cuts off power to all of the circuits, the individual
circuit breakers that cut off power to the individual circuits and “fuse
cut-offs” at the particular machines powered by the cited circuits. Tr. 159-60.
In Williams’s view each protection reduced the likelihood of an electrical
accident. Tr. 160.

THE VIOLATION,
ITS GRAVITY AND NEWMONT’S NEGLIGENCE

The
standard is simply worded, “Principal power switches shall be labeled to show
which units they control unless identification can be made readily by
location.” It is certain that there were three circuit breakers in two panels
that were not labeled. Burton’s oral testimony and the photographs introduced
into evidence by the Secretary prove this. Tr. 139-42; Gov’t Exh. 7 at 3, 4. The
unresolved issue is whether the circuit breakers were “principal power
switches” within the meaning of the standard. Based solely on the record
presented in this case, the court concludes they were.

As
the court has previously noted:

[Q]uestions
regarding the meaning of the phrase ‘principal

power
switch’ and whether particular cited equipment come

within
the meaning have repeatedly been brought to the

Commission’s
judges. While the judges have decided whether

certain
equipment is covered by the standard based on the

facts
of the cases before them, a definitive meaning of the

phrase
‘principal power switch’ has yet to emerge. See, e.g.,

Beverly
Materials, LLC, 35
FMSHRC 88, 95-97 (Judge Moran);

Cemex
Construction Materials of Florida, LLC . 34 FMSHRC

170, 174 (Jan . 2012 (Judge
Zielinski); Omya Arizona, A Division

of Omya, Inc., 33 FMSHRC 2738,
2739-40 (Judge Miller); Blue

Mountain
Production Co .,
32 FMSHRC 1464, 1473-74 (Oct. 2010)

(Judge Miller) ; Tide Creek
Rock, Inc. , 19 FMSHRC390, 399

(Judge Manning);
Walker Stone Co., Inc., 12 FMSHRC 256, 264

(Feb. 1990
(Judge Fauver); FMC Corp. , 6 FMSHRC 1294, 1299

(May 1984)
(Judge Vail) (decided under identically worded

standard (30
C.F.R. § 57.12-18.)

US Silica Company , 36 FMSHRC 517,
519 (Feb. 2014) ( fn omitted ); see also Northern Illinois Service Co. ,
37 FMSHRC 1225 (June 2015) (ALJ Barbour) .

In
this particular case the record establishes that, as Burton testified, the
circuit breakers were power switches in that they were components that could
break an electric circuit. While, as the court has noted, there is no accepted
meaning of the phrase “principal power switch” there is an accepted meaning of
the word “principal” when it is used as an adjective. It means “chief” or
“leading.” See Houghton Mifflin Harcourt, The American Heritage
Dictionary of the English Language, Fourth Edition (2009) at 1395. Here, as
Burton testified, the cited circuit breakers were the first switch[es] in the
line of the individual circuit[s]” (Tr. 156) so that each switch was “the
primary switch . . . for [its] circuit.” Tr. 155. The court construes a primary
switch as the chief or leading switch in a circuit, and the court concludes
that each cited circuit breaker was a “principal power switch” for its circuit.
It may be, as Williams’s questions on cross examination suggest, that there was
a principal power switch for all of the circuits in each breaker box. See Tr.
155-58. Indeed, Burton himself alluded to the presence of such a switch when
testifying that the cited conditions were unlikely to result in an accident
because “a miner could go to the main and switch the main breaker off in an
emergency.” Tr. 149. However, Williams did not offer oral or visual evidence
regarding such a switch or switches, and the court must rule based on the
record before it, not on speculation as to what the record might have been if
Williams had pursued the issue. The court therefore finds that the Secretary
proved the violation.

Burton
found that the violation was unlikely to result in an accident, and the court
fully agrees. There evidently were other ways to shut power off to the affected
circuits prior to working on them and the employees of the company’s electrical
subcontractor would have been much more likely to recognize this than the
company’s employees who did not specialize in electrical work. However, had an
accident occurred, the court agrees with Burton that a fatality was likely. Burton
stated the obvious when he testified that “a 480 volt electric shock is often
associated with fatal-type injuries.” Tr. 150.

Finally,
the court concurs with Burton that the company was moderately negligent. While
Williams may have been right when he testified the company’s electrical
subcontractor “screwed up” and failed to ensure the three circuits were
labeled, as Williams also recognized, the company should have “caught” the
mistakes. Tr. 160. Further, and as Burton testified, the workplace examination
forms for the panels did not record the missing labels. While the company may
have relied on the “expertise” of its subcontractor, it still was under a duty
to ensure compliance with the standards. The company failed in its duty.

CITATION NO.                     DATE              30
C.F.R. §           PROPOSED ASSESSMENT

8917956                                 8/25/15            56.14112(a)       
                     $1,304

The
citation states:

The
guard for “The Beast” [trimmer] saw was not secured

in
place. The saw was equipped with a nine-inch (approximate)

cutting
blade. The saw[’]s sliding table top is (approximately) 22

inches
wide. The trimmer saw[’]s cord was plugged in and the saw

was
available for use. The saw is used at the mill to custom trim

dimension
slate as needed. This condition exposes a miner to

contact
with the trimmer[’]s rotating blade. In the event an

accident
were to occur it would be reasonably likely that

permanently
disabling injuries would be expected.

Gov’t
Exh. 4 at 1. The citation contains the inspector’s findings that the cited
condition was S&S, was reasonably likely to cause a permanently disabling
injury and was due to the company’s moderate negligence. Gov’t Exh. 4 at 1.

Burton
stated that he issued the citation because the trimmer saw’s guard had been
removed. [11]
Tr. 173. The trimmer saw has a nine-inch blade and a 22-inch-wide tabletop. Id.
The saw is used to trim slate to order. Tr. 183-84. When Burton inspected
the saw he noticed that the guard for the blade was off and was sitting on a
shelf beside the saw. Tr. 173-74; Gov’t Exh. 4 at 6. Burton believed the saw
had been used. Tr. 174. The saw was plugged into an energized wall outlet, and
near the saw Burton observed pieces of slate that were typical of slate trimmed
with the saw. Tr. 174-75, 177; Gov’t Exh 4 at 7. Burton also noted dust around
and on the pieces of the guard, which indicated to Burton that the “guard [had]
been off . . . for a particular period of time, long enough to accumulate dust
on it.” Tr. 175. During that time Burton thought it likely the saw had been
used since it was usually used daily at the mine. Burton also recalled that the
mine foreman told him the guard was purposefully removed because it “may have
been sticking.” Tr. 185. This was another reason Burton thought it was likely
that the saw had been operated with the guard off. Tr. 204

Burton
believed the lack of a guard violated section 56.14112(b), which requires that
guards be securely in place while machinery is operated. Gov’t Exh. 4. He was
quick to point out, however, that he could have cited the company for a
violation of section 56.14107(a), a standard requiring the guarding of moving
machine parts that can cause injury to persons. Tr. 200. In view of Burton’s
testimony counsel for the Secretary moved to amend the Secretary’s petition to
plead in the alternative a violation of section 56.14107(a). Williams did not
object, and the motion was granted. Tr. 205-08.

Burton
testified that the danger presented by the condition was that a miner’s hands
might contact the rotating saw blade. Tr. 178. He explained that when a miner
trims slate, the miner secures the slate piece to the saw’s table top, places
his hands on the hand holds of the table top and pushes the table top and slate
through and past the saw’s rotating blade. The procedure brings the miner’s
hands very close to the turning blade. Tr. 180-81. The lack of a guard means
there was “direct exposure of a miner to the rotating and moving machine parts”
of the saw. Tr. 183-84. While only the miner who operated the saw was likely to
be affected by the alleged violation (Tr. 188), Burton thought an accident
involving the miner was reasonably likely and that as a result of the accident
the miner was likely to lose all or part of his or her hand, and possibly all
or part of his or her limb. Tr. 186. Burton termed such an injury a
“dismemberment-type injury.” Id.  Burton emphasized that the saw was not
tagged out and that electricity was flowing to it. Tr. 184, 186. He also noted
that the saw was typical of the type that is used daily at mine. Tr. 185. Because
the lack of a guard meant that a miner was directly exposed to the moving saw
blade and therefore was “reasonably likely . . . [to] make contact with [the
saw’s moving blade]” and suffer a permanently disabling injury, Burton found
that the alleged violation was S&S. Tr. 187-88.

Williams
testified that the company owned the saw for approximately five years. Because
the saw did not come with a guard the company manufactured and installed one.
Tr. 197. Williams agreed the saw was “safer if it is guarded.” Id. Williams
stated that one of his employees removed the guard on purpose. Tr. 198.

THE VIOLATION,
ITS S&S NATURE, ITS GRAVITY AND NEWMONT’S NEGLIGENCE

Section
56.14112(b) requires guards to be “securely in place while machinery is being
operated.” Although the standard can be read narrowly as requiring an inspector
to observe cited machinery in operation without a required guard, the court
believes a more expansive reading is equally valid, to wit that a violation can
properly be cited if it is reasonable to infer cited machinery was operated
without a required guard. A persuasive argument can be made that the dust that
accumulated on the parts of the guard (Tr. 175, 190), the slate ready to be cut
and trimmed that was near the guard’s parts (Tr. 174-75, 177; Gov’t Exh. 4 at
7), the fact that the saw was plugged into an energized outlet (177-78) and the
fact that Burton and Williams were told the guard was purposefully removed (Tr.
204, 198), when coupled with the fact that the saw was of the type in daily use
at the mill (Tr. 185), support the inference that the saw was used without the
guard prior to Burton’s inspection. In the court’s opinion, this inference would
establish the alleged violation of section 56.14112(b), and the court would
find a violation of the standard were it not for the court’s belief that the
Secretary’s alternative theory rests on an even more solid legal footing.

Section
56.14107(a) states that moving machine parts shall be guarded to protect
persons from contacting “gears, sprockets, chain . . . pulleys, flywheels,
couplings, shafts, fan blades and similar moving parts that can cause injury.” While
saw blades are not specifically mentioned in the standard they are similar to
the moving parts mentioned and contact with moving saw blades can cause injury.
Therefore, saw blades must be guarded. The blade of the cited stripping saw was
not guarded, and the court finds the failure to guard the blade violated
section 56.14107(a).

An
S&S violation is “of such nature as could significantly and substantially
contribute to the cause and effect of a . . . mine safety . . . hazard.” 30
U.S.C. §814(d). In order to establish the S&S nature of a violation, the
Secretary 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 the
injury will be of a reasonably serious nature.” Mathies Coal Co. , 6
FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., Inc., 53 F.3d
133, 135 (7 th Cir. 1995); Austin Power Co., Inc. 861 F.2d 99,
103 (5 th Cir. 1988) (approving the Mathies criteria). An
experienced MSHA inspector’s opinion that a violation is S&S is an
important element for the court to consider when making an S&S
determination. Harlan Cumberland Coal Co. , 20 FMSHRC 1275, 1278-79 (Dec.
1998).

The
Commission has explained that the focus of the Mathies analysis “centers
on the interplay between the second and third steps.” ICG Illinois , 38
FMSHRC 2474, 2475 (Oct. 2016) ( citing Newtown Energy Inc. , 28
FMSHRC 2033 (Aug. 2016)). The second step requires the judge to adequately
define the “particular hazard to which the violation allegedly contributes[,]”
and then determine whether “there exists a reasonable likelihood of the
occurrence of the hazard against which the mandatory safety standard is
directed.” Id. at 2475-76. This determination must be made “based on the
particular facts surrounding the violation[.]” Id. The third step
requires the judge to assume the existence of a hazard and assess whether the
hazard “was reasonably likely to result in a serious injury.” Newtown at
2038; ICG Illinois at 2476. Applying that test, the court concludes the
violation of section 56.14107(a) was S&S.

First,
as the court has found, the company violated section 56.14107(a). The second
step requires the court to define the particular hazard to which the violation
contributed and then to determine whether there existed a reasonable likelihood
of the occurrence of the hazard. The hazard in this instance was of a miner
being cut by a moving saw blade, and it is clear to the court that the lack of
a guard for the blade contributed to this hazard. Therefore the question is
whether there was a reasonable likelihood a miner would be cut by the moving,
unguarded blade. Burton’s testimony established that there was. He described
how a miner must place his or her hands on hand holds adjacent to the blade as
the miner pushes the table top through and past the rotating blade. Tr. 180-81.
A misplaced hand, a slip while pushing the table top, and a lack of attention
to the task, singly or in combination, could result in the loss of a finger or
hand or the maiming of an arm. In other words, the nature of the task and the
closeness of the saw operator’s hands to the moving blade in the court’s view support
Burton’s finding that it was reasonably likely the saw operator would be
injured. It is obvious to the court that the injury would be serious. The saw
operator would be lucky if he or she only lost a finger. The court affirms
Burton’s opinion that the violation was S&S.

In
addition to being S&S the violation was serious. A violation that places a
miner in reasonably likely danger of being maimed or dismembered cannot be
viewed otherwise.

There
is also the question of Newmont’s negligence. The court accepts the inspector’s
finding that the company’s lack of care was moderate. Management should have
detected and corrected the violation. It was, as Burton testified, open and
obvious. Tr. 189. Moreover, the dust on the pieces of the guard leads to the
reasonable inference that the violation existed for some time. Management
certainly understood that the guard should have been in place. After all, the
company provided the protection in the first place. Tr. 197. The company was
under a duty to ensure that the saw was guarded, and it failed to meet its
duty.

CITATION NO.                     DATE              30
C.F.R. §      PROPOSED ASSESSMENT

8917963                                 8/25/15            56.14103(b)                   
$392

CITATION NO.                     DATE              30
C.F.R. §      PROPOSED ASSESSMENT

8917968                                 8/26/15            56.14103(b)                   
 $362

The
two citations concern cracked windows, one on a haul truck and one on an
excavator.

Citation
No. 8917963 states

The
front window of . . . [a] haul truck . . . was cracked creating

a hazard to the
operator. The front window had two vertical

cracks and one
horizontal crack spanning the width of the window. A

pen tip test of
the widow[’]s cracks indicated the cracks had raised

edges. A miner
was observed touching the glass with finger tips. This

condition
creates a laceration hazard to a miner[’s] hands while touching

the glass. In the
event an accident were to occur it would be likely that

injuries
resulting in lost work days or restricted duty would be expected.

Gov’t Exh. 11 at

  1. The citation contains the inspector’s findings that the cited condition was
    S&S, was reasonably likely to lead to a lost workdays or restricted duty
    injury and was due to the company’s low negligence.

Citation
No. 8917968 states:

The
lower window in the operator’s station of the Volvo EC290CL . . .

[excavator] was
damaged creating a hazard to the operator. The

lower window
measured (approximately) 32  inches by 14  inches.

The left side of
the window and the upper right corner was taped

with duct tape
restricting an operator[’]s vision and the lower right

corner of the
window had star shaped cracks with raised edges and

divots in both
sides of the glass. A miner was observed touching the

glass with a
bare hand. This condition restricts an operator[’]s vision

through the
window and [creates] a laceration hazard to a miner[’s]

hands from contact
with the broken window. In the event an

accident were to
occur it would be reasonably likely a miner would

receive injuries
resulting in lost work days or restricted duty.

Gov’t
Exh.16 at 1. The citation contains the inspector’s findings that the cited
condition was S&S, was reasonably likely to lead to a lost workdays or
restricted duty injury and was due to the company’s moderate negligence.

According
to Burton, section 56.14103(b), the standard cited in both instances, requires
that windows of the cabs of self-propelled mobile equipment be “maintained for
visibility and also that [the windows] not create a hazard to the operator.”
Tr. 214-15. Burton described the subject front window of the haul truck as
having “two vertical cracks and one horizontal crack. The horizontal crack
spanned the width of the window.” Tr. 215. See Gov’t Exh. 11 at 6. He
described the cracks as being toward the middle of the window. Tr. 221; S ee Gov’t
Exh. 11 at 6. He further observed that the cracks had “raised edges” that subjected
the hand on anyone touching the window to cuts. Id. Burton knew the
cracks had raised edges because he moved the tip of his ball point pen over the
cracks and could hear the pen tip “click” when it traveled over a raised crack. [12]
He also testified that the company’s maintenance foreman agreed that the edges
of the cracks were raised. Tr. 218. According to Burton, the truck is used
daily to move slate to the waste pile or to the mill. Tr. 220.

In
Burton’s view the raised cracks presented a cut hazard in that a miner would
clean the window of the truck to maintain visibility. In addition, during the
preoperational examination of the truck the truck driver would move his bare
hand across the crack. Tr. 216. Burton testified that during his inspection of
the truck, he saw the truck driver touch the crack with his bare hand, although
this was in response to a pen tip test conducted by Burton. Tr. 217, 218-19. Burton
also stated he determined “through interviews” that miners used “paper towels
or rags to clean the glass,” which would put a miner’s hand directly on the
cracks with only a piece of paper towel or a piece of cloth between the cracks
and the miner’s skin. Tr. 218. Burton believed that a miner was putting his
bare hand “in close proximity” to the cracked glass every time he or she
cleaned the windshield. Tr. 220. He further noted that the window needed to be
cleaned frequently because of dust accumulating on it. [13]
Tr. 221-22.

Burton
believed an injury was reasonably likely because he “observed a miner reaching
out and directly . . . exposing himself to [the] hazard” and because a miner
put a bare hand in close proximity to the glass every time he or she cleaned
it. Tr. 219-20. Burton found the resulting injury was likely to result in lost
workdays or restricted duties because if a miner cut his or her finger the
miner would first have to have someone look at the cut and then, perhaps, have
the cut stitched. Also, if a glass shard lodged under the miner’s skin the
injury could lead to an infection and the infection could cause a miner to miss
work. Tr. 220-21.

Burton
found that the company’s negligence was low. Burton testified he was told that
two weeks prior to his inspection the truck had stopped abruptly, the hood had
popped up hitting and cracking the front window, and the truck operator had not
told mine management or noted the condition on his pre-shift report. Tr. 227. Burton
learned that the haul truck driver was the only person who operated the truck
and that the driver did not tell management because he did not believe the
cracks interfered with his vision. Tr. 224. But, the condition had existed for
two weeks and Burton thought that during the two weeks management officials
should have seen the cracks and replaced the window. Tr. 225.

With
regard to the excavator, Burton stated that it was used multiple times a day to
move slate, stone or rubble to the mill or to the waste dump (Tr. 231-32) and
that he issued the citation because the lower window of the operator’s
compartment on the excavator was damaged and Burton believed that the damage
created a hazard to the excavator operator and others. Tr. 229. The left side
(when viewed from inside the compartment) of the window was half covered with
duct tape. There was also a smaller amount of duct tape on the right side of
the window. Tr. 230; Gov’t Exh. 16 at 4. Under the duct tape on the lower right
side were star shaped cracks with raised edges. Both sides of the window had
divots. Id. According to Burton, the duct tape, cracks and divots obscured
the excavator operator’s vision. Tr. 230. He feared that “with [the] reduced
visibility . . . a miner might not be able to effectively see to operate the
equipment.” Tr. 321. Burton testified that the lack of full visibility could
cause a fatality in that when the excavator was operated near the edge of a
highwall or drop off, the miner operating the excavator might not see the edge
or might misjudge the distance resulting in the excavator over-traveling the
edge and causing serious injury or death to the excavator operator. Tr. 233. Moreover,
other miners worked in close proximity to the excavator and they could be hit
and/or run over because the operator’s vision was limited. Tr. 233-34. The
possible injury would affect one person, either the operator of the excavator
or a miner working near the excavator. Id.

Burton
also feared the cracks created a hazard by exposing the excavator operator to
cuts on his or her hands. Tr. 230. Burton thought it was reasonably likely a
miner would suffer hand cuts because he actually saw a miner touch the cracks
with his bare hand after Burton conducted a pen tip test on the window. Tr.

  1. He further believed the condition of the window was likely to lead to lost
    workdays or restricted duty because if a miner cut his hand while making
    contact with the glass it could involve a trip to the doctor and the cut or
    imbedded glass shards might lead to an infection. Tr. 232.

Burton
concluded that Newmont was moderately negligent. The fact the window was taped
indicated someone knew of the condition but did not correct it. Tr. 235.

Williams
did not challenge the existence of the defective windows but he was skeptical
of the inspector’s S&S findings. He questioned if, given the small
elevation between the cracks in the haul truck’s window, anyone touching the
cracks was likely to get more than a minor cut or an abrasion requiring a Band-Aid.
Tr. 239. Williams also disputed Burton’s scenario that

A
miner would receive a cut to the finger, he or she

would
have to go to a doctor [to] have it evaluated.

There
is the potential that bandaging would have to be

applied,
that there is a potential for infection to the

cut
and/or bandaging or stitches would have to be

[applied
and] a doctor would have to be visited a

second
time and those materials be removed and

the
cut inspected.

Tr. 243-244. Williams
responded, “Pretty doomy and gloomy for a little cut. I’ve been cut a million
times and never gone to a doctor for anything unless it was real deep.” Tr.
244.

THE VIOLATIONS,
THEIR S&S NATURE, THEIR GRAVITY AND NEWMONT’S NEGLIGENCE

Section
56.14103(b) requires the replacement or removal of damaged windows on
operators’ stations of self-propelled mobile equipment if the damage obscures
visibility necessary for the safe operation of the equipment or if the damage
creates a hazard to the equipment operator. The court finds the Secretary
proved both of the alleged violations, albeit for somewhat different reasons. Because
there was no evidence to the contrary the court concludes that the front window
on the haul truck was cracked as described by Burton. Tr. 215, 221, Gov’t Exh.
11 at 6. The cracks caused the edge of the glass on one side of the cracks to
be slightly raised above the other side. The raised nature of the cracks was
confirmed by Burton’s “pen tip” test. Tr. 215-16. The court agrees that the
raised cracks presented a cut hazard to the haul truck operator as he cleaned
dust from the windshield. Tr. 217-19. The hazard caused by the damage to the
window established the violation with regard to the haul truck. [14]

The
damage to the window of the excavator as described by Burton also was not
disputed by Newmont. Therefore, the court finds that the lower window of the
operator’s compartment was extensively taped to the point where the left side
of the window was totally covered and the right side had a rectangular block of
tape covering the upper right side of the lower window. Tr. 229-30; Gov’t
Exh.’t. 16 at 4. In addition, there were cracks with raised edges on the lower
right side of the window. Id.

The
court credits Burton’s testimony that the damaged window presented a hazard to
the excavator operator. The duct tape on the lower window obviously obscured
his or her vision of the immediate vicinity in which he or she was operating
the excavator. The court agrees with Burton that failing to see the ground near
the equipment could lead to the equipment operator misjudging the room in which
he or she had to maneuver. As Burton maintained, if the excavator was near a
highwall or other drop off the operator might not see the edge or might
mistakenly think there was more room to operate than in fact was the case
sending the excavator and its operator over the edge. Tr. 233. Or, as Burton
noted, the operator might not see a miner working in the immediate vicinity of
the excavator and might because of his or her limited vision hit or run over
the miner. Further, the court credits Burton’s testimony that the raised cracks
exposed the equipment operator to cuts as he or she tried to clear dust from
the lower window. Tr. 230. Therefore, the court finds the damaged window of the
excavator both created a cut hazard to the equipment operator and obscured the
operator’s visibility—visibility necessary to safely operate the excavator. Tr.
233.

While
the court agrees with the inspector that the company violated section
56.14103(b) in both instances, it finds that only the damage to the excavator’s
lower window was an S&S violation. There is no gainsaying the fact that a
haul truck driver would from time to time clean the inside of the haul truck’s
windshield to remove dust. However, as Burton testified the driver would have a
rag or paper toweling between his fingers and hands and the glass. This
minimized the chance of a severe cut and/or of a glass shard lodging in the
driver’s finger or hand. Even if the operator was bare handed nothing more than
a painfully annoying cut or splinter was reasonable to expect, and such
injuries do not rise to the level of being reasonably serious as required by Newtown .
The court concludes Williams was correct when he stated that the cracks in the
haul truck’s windshield were most likely to result in a cut or an abrasion
requiring a Band-Aid. Tr. 238. Burton’s scenario of a cut or splinter requiring
a doctor’s care, bandaging, possible stitches and a resulting infection with
follow up doctor’s visits is possible, but not reasonably so. Tr. 243-44.

On
the other hand, the damaged lower window on the excavator was indeed an S&S
violation. All of the Mathies criteria as explained in Newtown
were met. There was a violation of section 56.14103(b). The excavator was used
multiple times a day, and the danger created by the violation was that its
operator being unable to see in full the ground to the front and to the side of
the excavator, would not see the distance he or she had in which to maneuver or
would misjudge the distance and would inadvertently send the excavator over a
drop off. Tr. 231-32. Williams did not challenge Burton’s testimony in this
regard. Nor did he contradict Burton’s belief that the excavator operator’s
lack of full vision subjected a miner working in the immediate vicinity of the
excavator to the danger of being hit and/or run over. Tr. 233. The court
concludes that the frequent use of the excavator made the occurrence of these
hazards reasonably likely as mining continued and it is obvious that the
occurrence of either scenario was reasonably likely to result in a serious
injury.

Given
the findings with regard to the S&S nature of the haul truck violation the
court concludes the cracks in its windshield did not constitute a serious
violation. While it is true one person was subject to possible injury, the
court has found that the injury was likely to be minor in nature. This is not
the case with regard to the damaged lower window of the excavator. The
restricted visibility that resulted from the violation was likely to cause the
serious injury or death of the excavator operator or of a miner working
adjacent to the excavator. The court therefore finds the violation was serious.

Finally,
the court concludes that both violations were caused by Newmont’s moderate
negligence. The defective windshields were visually obvious. Both the haul
truck and the excavator were subject to pre-shift examinations. The violations
should have been detected and corrected, and they were not. See Tr. 225,
227, 235.

CITATION NO.         DATE               
  30 C.F.R. §   PROPOSED ASSESSMENT

8917967                     8/26/15              
56.6900                                $243

The
citation states:

There
were deteriorated explosives in magazine #2

of
the mine. There was one box of explosive[s]

containing
48 sticks of 1 – ¼ by 8 inch 60% explosive[s]

(Lot
number 08JA14J1). The explosive sticks[’]

wrapping
paper was discolored and white crystals

had
begun to form on one of the sticks. This

condition
creates an uncontrolled detonation of

explosive
materials hazard. In the event an

accident were to
occur it would be likely that fatal

injuries
would be expected.

Gov’t
Exh. 15 at 1. The citation contains the inspector’s findings that the cited
condition was unlikely to lead to a fatal accident and was due to the company’s
moderate negligence. Gov’t Exh. 15 at 1.

On
August 26 Burton examined the mine’s Magazine Number 2, a magazine containing
dynamite. [15]
Tr. 255. Burton was accompanied by the company’s blaster. Tr. 256. Burton
noticed a box of explosives labeled “Lot No. 08JA14J1.” Tr. 256. The label
indicated the box contained 48 sticks of dynamite. To verify the number of
sticks inside the box the inspector and the blaster opened the box. Each stick
was an inch and a quarter in diameter by eight inches long. The sticks
contained sixty percent explosive material. Tr. 254. Burton described the
wrapping paper of the sticks as “discolored.” Tr. 254. In addition, according
to Burton, “White crystals had begun to form on the outside of one of the
sticks.” Id. The white crystals indicated to Burton that the explosive
material in the stick had deteriorated to the point where, “The explosive agent
on the inside [of the stick] had started to bleed out through the paper.” Id.
 Because of the deterioration Burton questioned if the explosives were safe
to handle. The blaster too felt uncomfortable because of the discoloration and
crystal formation. Burton testified the blaster said that,” [T]he explosives
contained in that box [are] unsafe.” Tr. 257. Burton added that he was told by
the blaster that agents from the Bureau of Alcohol Tobacco and Firearms (“ATF”)
visited the mine one week before Burton’s inspection. The agents informed the
company the explosives should be disposed of. [16]
Id ., Tr. 261. The blaster added that the company planned to detonate the
explosives in an on-site blast the next day, August 27. Tr. 262.

Despite
the company’s plan to dispose of the dynamite, Burton issued a citation to Newmont
because of the deteriorated explosives. Gov’t Exh. 15. The inspector cited the
company for a violation of section 56.6900, which states that, “Damaged or
deteriorated explosive material shall be disposed of in a safe manner in
accordance with the instructions of the manufacturer.” Burton recognized that
under the standard the company needed to know who the manufacturer of the
explosives was so as to conform to the manufacturer’s disposal instructions.
Tr. 259. Austin Powder was the manufacturer, and Burton called Austen Powder. Austin
Powder’s representative told Burton that the discolored and crystalized sticks
had in fact deteriorated and that such explosives typically are consumed in a
nonproductive blast or are burned. Tr. 259-60. In Burton’s opinion the company
“had been warned “ by the ATF to eliminate the dynamite but they “had already
let [them] set for six days.” Tr. 266. He added, “When they have deteriorated
explosives they need to take corrective actions to remediate that hazard. The
fact that they were told days prior actually indicates . . . that the issue is
not being taken seriously.” Id.

Burton
recognized that the dynamite was being stored in an ATF approved magazine,
which he stated was “about the safest place on the mine that explosives could
be.” Tr. 263. However, should an unplanned explosion occur, a fatality could be
expected. Tr. 263. The person most likely to be killed would be a miner
accessing the magazine. Tr. 264. He noted that an unplanned explosion could
result from just handling the explosives because once they start deteriorating,
“They become potentially unstable . . . and merely even handling the
explosive[s] could set [them] off.” Id.

Because
the ATF put the company on notice and the company failed to act promptly Burton
found the company to be moderately negligent. Tr. 265. Burton stated, “[O]ne
week seems excessive.” Id.

Williams
explained that explosives usually deteriorate during the summer when the heat
causes the components of the dynamite to separate Tr. 272-73. He further
explained that dynamite is not easy to detonate. To cause it to explode
dynamite has to be “hit with quite a shock.” Tr. 273. In William’s opinion it
is best to leave deteriorated dynamite in a static location and to dispose of
it when the next regularly scheduled blast takes place. Id.

Williams
explained that the company kept only one or two boxes of dynamite on hand to
use for small projects. He speculated that the relatively infrequent use of
dynamite at the mine was why the subject explosives deteriorated. Tr. 274. He
was adamant the deteriorated dynamite was not dangerous. He stated, “There was
no unsafe factor there. So, it was just an overeager inspector trying to get
another citation.” Id. Williams added that a box of dynamite costs $300.00
and because the company “didn’t feel like buying $300 worth of dynamite for no
reason at all” it was waiting “until the next shot . . . [which] hadn’t come
yet.” Tr. 275.

When
Burton returned to the mine on September 14, he was advised that the deteriorated
explosives had been consumed in a blast before his return visit (Tr. 286), and
he terminated the citation. Gov’t Exh. 15 at 2.

THE
VIOLATION

The court
concludes the Secretary did not prove a violation. The court has no doubt the
inspector identified a safety hazard. The court credits Burton’s description of
the deteriorated dynamite and his explanation that the box and its contents
posed a hazard. Tr. 254. The court also credits the blaster’s opinion as
expressed to Burton that the dynamite was not safe. Tr. 257. When Burton wrote
the citation he described the violative condition as the presence of the
defective explosives. (“There were deteriorated explosives in magazine #2 of
the mine.” Gov’t Exh. 15 at 1.) During his testimony he expanded his reason for
issuing the citation by adding that when deteriorated explosives are present
the standard requires an operator to “take corrective actions to remediate that
hazard.” Tr. 266. In his view the company did not take the required corrective
action in a timely manner. Id. The problem for the Secretary is that
when drafting the regulation he said nothing overt about the time within which
deteriorated explosives must be eliminated. Rather, the regulation addresses
the manner in which such explosives must be destroyed or otherwise removed from
the mine. The standard states that they must be eliminated, “in a safe manner
in accordance with the instructions of the manufacturer.” 30 C.F.R. § 56.6900. While
it is conceivable a manufacturer would recommend a time within which a
defective product should be removed or eliminated, the record does not reveal
whether Austin Powder set or suggested such a time limit, or what that time
limit otherwise was. See Tr. 260-66. Further, even if a “reasonable”
time limit is implied in the otherwise silent standard, the court, like Burton,
would credit the blaster’s statement that the deteriorated explosives would
have been destroyed in a manner recommended by Austin Powder on August 27 [ [17] ],
and the court would conclude that this was a reasonable time under all of the
circumstances. Tr. 262, 266-67. The court notes the lack of any evidence the
explosives would be handled before they were destroyed and the lack of evidence
that their undisturbed presence in the magazine (“the safest place in the mine
that explosives could be”) until August 27 would pose a hazard. Tr. 263. The
Secretary needed to prove the passage of a week and a day was an unreasonable
risk, and he did not do so.

CITATION NO.         DATE              30
C.F.R. §                  PROPOSED ASSESSMENT

8917954                     8/25/15            56.4201(a)(1)[ [18] ]                        
$585

The
citation states:

There
were 4 fire extinguishers in the mill building at the

mine
that had not received monthly examinations. The

[company’s]
designee to conduct examinations had retired

and
[he had] not been replaced. Records located on the

extinguishers
showed exams had been performed through

June
of 2015. This condition does not allow a miner to

know
if the extinguisher will function in an emergency. In

the
event an accident were to occur it would be likely that

injuries
resulting in lost workdays would be expected.

Gov’t
Exh. 2 at 1. The citation contains the inspector’s findings that the cited
condition was unlikely to lead to an accident resulting in lost workdays or
restricted duty and that the violation was due to the company’s high
negligence. Gov’t Exh. 15 at 1.

During
the course of the August 25 inspection Burton found four fire extinguishers in
the mill that apparently had not been examined in more than a month. Tr.
295-96. According to Burton, under section 56.4200(a)(1) the extinguishers “are
required to receive an exam on a monthly basis.” [19]
Tr. 296. Burton stated that a tag on each of the four extinguishers recorded
the last examination as taking place in June 2015. Id. Burton
acknowledged that none of the extinguishers were functionally defective. Id.
However, in Burton’s view a monthly examination is important because it “allows
a miner to know that a . . . fire extinguisher will effectively function in an
emergency situation.” Tr. 297. If an extinguisher malfunctions a miner can
suffer prolonged exposure to smoke and fire and may lack the ability to control
a fire in its early stages, which may in turn lead to smoke inhalation or
burns. Id.

Burton
found that the company was highly negligent. Gov’t Exh. 2 at 1. He stated the
company knew the employee who conducted the examinations retired and Newmont
should have assigned another miner to undertake the examinations. Tr. 298. Burton
also observed that management officials traveled through the mill building
daily. The fact the examinations had not been recorded was visually obvious
given the last dates on the tags. Id. Burton stated that the only
explanation he was given for the fact the inspections had not been conducted
and recorded was that “the company had overlooked replacing the retired miner.”
Tr. 299.

Williams
maintained a person in fact examined extinguishers at the mine, and he asked
Burton how many extinguishers Burton inspected. Burton stated he looked at
“numerous” other extinguishers. [20]
Tr. 299. Williams observed that “a new man missed [only] four of them.” Id.
In Williams view failing to inspect and record the inspections of four of its many
fire extinguishers was not egregious. Tr. 303-04.

Burton
responded that Williams walked through the mill every day. In Burton’s opinion
Williams knew the monthly examinations of the fire extinguishers had not been
performed. Tr. 305-06. As Burton put it, “It is the mine operator’s
responsibility to conduct [the] examinations or to designate somebody and
follow up to make sure they have been done.” Tr. 308.

THE VIOLATIONS,
ITS GRAVITY AND NEWMONT’S NEGLIGENCE

The
Secretary easily established that Newmont violated section 56.4201(a)(1) which
requires that “fire extinguishers be inspected visually at least once a month
to determine that they are fully charged and operable.” Burton’s testimony that
the inspection tags on four extinguishers in the mill showed that the
extinguishers were last inspected in June was not challenged by Newmont. Tr. 295-96.
The court infers that Newmont’s failure to record the monthly visual
inspections in July meant that the July inspections were not done with regard
to the four extinguishers, just as Burton alleged, and it concludes Newmont
violated section 56.4201(a)(1). While it is possible, as Burton testified, that
the failure to monthly examine a fire extinguisher could lead to a miner
suffering excessive smoke inhalation and/or burns, in the matter at hand the
four extinguishers were in no way defective rendering the likelihood of injury
somewhere between minimal and non-existent. Tr. 297. The violation was
technical and non-serious in nature.

Further,
the court concludes the company’s negligence was low. While Burton maintained
the company should have assigned another employee to replace the missing
examiner (Tr. 298, 299), the record supports finding that is exactly what the
company did. Burton agreed that he examined “numerous” fire extinguishers at
the mine and that only four were in violation of section 56.4201(a)(1). Tr.

  1. The court concludes that someone conducted and recorded the monthly
    inspections for all of the fire extinguishers except four. In the court’s
    opinion this mitigates Newmont’s negligence to the point where its failure to
    comply was of a low degree.

CITATION NO.         DATE              30
C.F.R. §                  PROPOSED ASSESSMENT

8917957                     8/25/15            56.14100(b)                        
 $585

The
citation states:

The
manufacturer installed left hand seat belt on the #5

TMC
forklift . . . was fastened to the manufactured mounting

point
by a knot tied in the seatbelt. The forklift is used to move

slate
products in the mill building of the mine. This condition

exposes
a miner to a fall/run over by mobile equipment hazard.

In
the event an accident were to occur it would be likely that

fatal
injuries would be expected.

Gov’t
Exh. 5 at 1. The citation contains the inspector’s findings that the cited
condition was unlikely to lead to an accident resulting in fatal injuries and
was due to the company’s moderate negligence. Gov’t Exh. 5 at 1.

On
August 25 Burton testified he inspected four or five forklifts at the mine. Tr.

  1. All were manufactured by the same company, TCM. Tr. 325-26. Burton
    explained that when inspecting the No. 5 forklift he found that its left hand
    seat belt was fastened to the mounting point with a knot. The belt had “been
    cut off and . . . had been threaded back through the bracket and literally tied
    in a knot to hold it onto the forklift.” Tr. 317. When seat belts are installed
    by TMC they are attached to a bracket and the bracket is bolted to the frame of
    the forklift. Tr. 317-18. Burton also explained that the No. 5 forklift was
    equipped with a falling object protection structure (a “FOPS”) and that there
    is no standard requiring a forklift with a FOPS to have a seatbelt. However,
    Burton understood if the equipment comes from the manufacturer with a seatbelt,
    because the seatbelt affects safety, defects to the seatbelt must be timely
    corrected to prevent a hazard to the equipment operator. Tr. 318. Because the knot
    in the cited seat belt was hand tied, there was no way to ensure whether it
    would hold as intended by the manufacturer. Burton therefore believed that the
    hand tied seatbelt was defective and violated section 56.14100(b). Tr. 319.

The
No. 5 forklift was used daily to move slate in and around the mill buildings.
Tr. 319, 322. The danger posed by the condition was that in the event of an
accident the seatbelt might not hold the forklift operator on the equipment. He
or she could fall off and be hit or run-over by the forklift or by another
piece of equipment. Tr. 319, see also Tr. 324

Burton
checked and found that the defective seatbelt was not reported on any of the
pre-shift examinations of the forklift. In his view this reflected management’s
misplaced belief that the seatbelt was not required to be maintained on the
forklift, and he found that the company was moderately negligent. Tr. 325;
Gov’t Exh. 5 at 1.

Williams
stated that only the No. 5 forklift came from the manufacturer with a seatbelt.
Like Burton, Williams noted that seatbelts are not required on equipment with
FOPS, and he questioned why the company was required to maintain a seatbelt
that was not a requisite component of the equipment. Tr. 327. Williams further
stated that the mine’s forklifts travel on level ground at about five miles per
hour and that all have centers of gravity about one foot off of the ground,
making them extremely unlikely to overturn. Tr. 328.

THE VIOLATIONS,
ITS GRAVITY AND NEWMONT’S NEGLIGENCE

Section
56.14100(b) states, “Defects on any equipment . . . that affect safety shall be
corrected in a timely manner to prevent the creation of a hazard to persons.” When determining whether the standard has been violated
the evidence must be evaluated in the light of what a “reasonably prudent
person, familiar with the mining industry and the protective purpose of the
standard, would have provided in order to meet the protection intended by the
standard.” See e.g., Cannon Coal Co. , 9 FMSHRC 667. 668 (April 1987); Quinland
Coal, Inc., 9 FMSHRC 1614-1618 (September 1987). Ideal Cement Co. ,
12 FMSHJRC 2409, 2415 (September 1990). Applying this test, the court finds
that the Secretary established the violation. TMC manufactured the fork lift
with a seat belt. In the court’s opinion a reasonably prudent person would
assume the seat belt served its intended purpose of keeping the fork lift
operator in place in case the fork lift was involved in an accident or
overturned. To provide the maximum amount of protection the seat belt had to be
securely affixed to the frame of the fork lift. Tying the seatbelt to its
mounting point offered less protection in that the knotted belt would tend to
give in the event of a mishap. In the court’s view a reasonably prudent person
would have replicated the condition of the seat belt as it came from TMC by
permanently reattaching the belt to the frame.

The Commission addressed the timeliness requirement in section
56.14100(b) in Lopke Quarries, Inc. , 23 FMSHRC 705 (July 2001). The
Commission determined that, “[w]hether the operator failed to correct the
defect in a timely manner depends entirely on when the defect occurred and when
the operator knew or should have known of its existence.” Id. at 715. Little
evidence was offered by the Secretary regarding “timeliness.” However, a
reasonable inference can be drawn that Newmont did not timely comply. Burton
testified to his understanding that the forklift was used daily (Tr. 322). Williams
did not dispute Burton or offer other evidence of the frequency of use, and the
court concludes that the forklift was in fact used every day the mine operated.
Burton also testified that he looked at the pre-shift examination reports for
the forklift for several days prior to the inspection and found that the defective
seatbelt was not reported. Linking the daily use with the non-reporting and
with William’s stated belief the company was under no obligation to return the
seatbelt to its original condition, Burton inferred the defective seatbelt was
not repaired in a timely manner. The court finds Burton’s inference to be
reasonable under the circumstances, and it affirms the violation.

The inspector found the violation was unlikely to result in a
fatal injury. The court agrees and finds the gravity of the violation was nil. Williams’s
statement that the forklift was all but impossible to overturn because of its
low center of gravity was not disputed, nor was his testimony that when in use
the forklift traveled at about five miles per hour, a speed making collisions extremely
unlikely. Tr. 328. Moreover, the fact that the parties agreed the forklift
could have come from TMC without a seatbelt and not run afoul of any safety
standards speaks volumes about the minimal hazard posed by the cited condition.
Tr. 318, 327.

Burton found that Newmont was moderately negligent. The court
finds the company’s negligence was low. The violation was based upon the
company’s good faith belief compliance was not required because the seatbelt
was not required. See Tr. 327. The company’s conclusion was reasonable
even though it was wrong. In the court’s view Newmont’s reasonable, good faith
belief greatly mitigated its negligence.

OTHER CIVIL PENALTY CRITERIA

Counsel
for the Secretary asserted that in the 15 months prior to August 25, 2015,
there were 43 cited, assessed and paid violations at Newmont’s mine, which
counsel described as an” average” number. Tr. 166-67, 25; Gov’t Exh. 1. The
court finds the company’s history of previous violations not to be such as to
increase or decrease the court’s assessments. With regard to the size of the
mine, counsel maintained that the company was “not small.” Tr. 168. However,
the court notes that in proposing penalties the Secretary appears to have
regarded the mine as somewhere between a small and medium size facility. See
Petition for Assessment of Civil Penalty, Exh. A. The court finds the size
to be such as not to warrant assessments above those proposed.  The court
further notes that in proposing penalties the Secretary credited Newmont with
good faith in attempting to achieve timely compliance. Id. Finally, the
parties agreed that any penalties assessed will not affect Newmont’s ability to
continue in business. Relevant Fact 6.

ASSESSMENT
OF CIVIL PENALTIES

THE CONTESTED CITATIONS

CITATION
NO.
  DATE       30 C.F.R. §      PROPOSED
ASSESSMENT   ASSESSMENT

8917961           
 8/25/15   56.4101            $263                                            $263

The
court finds that the violation was serious and that the company’s negligence
was low.

Given these
findings and the other civil penalty criteria the court assesses the penalty
proposed by the Secretary.

CITATION NO.   DATE      
30 C.F.R. §     PROPOSED ASSESSMENT   ASSESSMENT

8917962            
8/25/15        56.13011                $585                                $200

The
court finds that the violation was not serious and that the company’s
negligence was low. Given these findings and the other civil penalty criteria
the court assesses a penalty of $200 for the violation.

CITATION NO.   DATE       30
C.F.R. §      PROPOSED ASSESSMENT     ASSESSMENT

8917959           
 8/25/15   56.12018               $585                                      $585

The
court finds that the violation was moderately serious and that the company’s
negligence was moderate. The court’s findings do not diverge significantly from
Burton’s, and the court assesses the penalty proposed by the Secretary.

CITATION
NO.
  DATE    30 C.F.R. §         PROPOSED
ASSESSMENT   ASSESSMENT

8917956           
 8/25/15   56.14112(a)                    $1,304                           $1,304

The
court finds that the violation was moderately serious and that the company’s
negligence was moderate. The court’s findings do not diverge significantly from
Burton’s, and the court assesses the penalty proposed by the Secretary.

CITATION
NO.
  DATE       30 C.F.R. §     PROPOSED
ASSESSMENT   ASSESSMENT

8917963            
8/25/15        56.14103(b)              $392                              $250

The
court finds that the violation was not serious and that the company’s
negligence was moderate. The court further finds that the violation was not
S&S. Accordingly, the court will modify the citation to reflect that an
injury could reasonably be expected to result in no lost workdays. In addition it
will delete the inspector’s S&S finding and modify his negligence finding
from low to moderate. Given these findings and the other civil penalty criteria
the court assesses a penalty of $250 for the violation.

CITATION
NO.
DATE        30 C.F.R. §      PROPOSED ASSESSMENT  
ASSESSMENT

8917968           
8/26/15         56.14103(b)              $362                               $362

The
court finds that the violation was S&S, was serious and was caused by the
company’s moderate negligence. The court’s findings do not diverge from
Burton’s, and the court assesses the penalty proposed by the Secretary.

CITATION
NO.  
  DATE      30
C.F.R. §      PROPOSED ASSESSMENT   ASSESSMENT

8917967            
 8/26/15  56.6900              $243                                $0

The
court finds that the Secretary did not prove the violation. A penalty cannot be
assessed.

CITATION
NO.  
  DATE      30 C.F.R. §     PROPOSED
ASSESSMENT   ASSESSMENT

8917954            
 8/25/15  56.4201(a)(1)                  $585                             $200

The
court finds that the violation was not serious and that the company’s
negligence was low. Given these findings and the other civil penalty criteria
the court assesses a penalty of $200 for the violation.

CITATION
NO.  
  DATE      30 C.F.R. §    PROPOSED ASSESSMENT
  ASSESSMENT

8917957            
 8/25/15   56.14100(b)                     $585                        $200

The
court finds that the violation was not serious and that the company’s
negligence was low. Given these findings and the other civil penalty criteria
the court assesses a penalty of $200 for the violation.

THE
UNCONTESTED CITATIONS

As
noted above, during the course of the hearing and after a discussion with
counsel, Williams in effect withdrew the company’s contest of the citations set
forth below. Tr. 135-36, 165-66. Given Newmont’s withdrawal the court finds
that the violations existed as charged. The penalties are assessed as proposed.

CITATION
NO.  
DATE       30 C.F.R. §      PROPOSED ASSESSMENT
  ASSESSMENT

8917955            
8/25/15  56. 12032                 $176                         $176

CITATION
NO.  
DATE       30 C.F.R. §      PROPOSED ASSESSMENT
  ASSESSMENT

8917958            
8/25/15  56.14115(b)                    $263                               $263

CITATION NO.  
DATE   30 C.F.R. §     PROPOSED ASSESSMENT
  ASSESSMENT

8917969            
8/25/15  46.9(a)                            $100                               $100

CITATION
NO.
  DATE   30 C.F.R. §    PROPOSED ASSESSMENT
ASSESSMENT

8917966            
8/25/15        62.170(b)                        $108                   $108

CITATION
NO.
  DATE   30 C.F.R. §    PROPOSED ASSESSMENT
  ASSESSMENT

8917965            
8/25/15 56.6132(a)(6)                  $108                               $108

CITATION
NO.
  DATE     30 C.F.R. §     PROPOSED ASSESSMENT
  ASSESSMENT

8917964           
 8/25/15  56.4201(a)(1)                 $100                         $100

CITATION
NO.
  DATE   30 C.F.R. §    PROPOSED ASSESSMENT
  ASSESSMENT

8917960           
 8/25/15  56.9301              $243                   $243

Tr.
135-36, 165-66.

ORDER

The
inspector’s negligence finding in Citation No. 8917954 IS MODIFIED from
“high” to “low,” his negligence finding in Citation No. 8917962 IS MODIFIED
from “moderate” to “low,” his gravity and negligence findings in Citation No.
8917963 ARE MODIFIED from reasonably likely to result in “lost workdays
or restricted duty” and “low” negligence to reasonably likely to result in “no
lost workdays” and “moderate” negligence, his S&S finding in Citation No.
89817963 IS DELETED , and the inspector’s negligence finding in Citation
No. 8917957 IS MODIFIED from “moderate” to “low.” Further, Citation No.
8917967 IS VACATED .

Within
30 days of the date of this decision, Newmont SHALL PAY civil penalties
in the amount of $4,462 ($3,364 for the violations found in the contested
citations and $1,098 for the violations found in the uncontested citations). [21]
Upon PAYMENT of the penalties, this proceeding is dismissed.

/s/
David F. Barbour

David
F. Barbour

Administrative
Law Judge [22]

Distribution:
(Certified Mail)

Emily
B. Hays, Esq., U.S. Department of Labor, Office of the Solicitor, MHSA Backlog,
1244 Speer Blvd., Suite 216, Denver, Colorado  80204

John
Williams, President, Newmont Slate Company, Inc., 720 Vt. Rte. 149, West
Pawlet, Vermont   05775

/db

[1] The court’s
original decision issued on March 30, 2017, contained several clerical errors
regarding the Secretary’s proposed penalties in Citation Nos. 8917956, 8917960,
and 8917966.  The decision has been amended to reflect the correct proposed and
assessed penalties. As a result of these changes, Newmont shall be required to
pay civil penalties in the amount of $4,462, instead of the amount of $3,592
originally specified in the March 30 decision. Further, the final order has
been amended to reflect the modifications made to Citation Nos. 8917954 and
8917963 in the body of this decision.

[2] John Burton is
a duly authorized mine inspector working out of the MSHA field office in
Albany, New York. Burton graduated from high school in 1988 and then went into
the United States Army where he served as a combat engineer and a heavy
equipment operator. Following his honorable discharge Burton worked for a
construction company as a foreman and a heavy equipment operator. After leaving
the construction company Burton worked for a company producing and selling
concrete redi-mix and the aggregates from which redi-mix is produced. While
working in the redi-mix business Burton operated and maintained a wash plant, a
screening plant, and he operated various types of mobile equipment. Tr. 33. He
also was responsible for conducting workplace examinations and mobile equipment
examinations. Tr. 33-24. Burton next worked as a haul truck driver for a
construction company where he once again operated various types of heavy
equipment.

[3] Williams has
been mining slate for 53 years. He knows the business inside and out. However,
he is not conversant with the mechanics of the Mine Act. Williams explained to
the court that while in the past he accepted citations as written and paid
fines as assessed, he found the process “downright annoying.” Tr. 19. Adding to
his pique was his claim that the inspection during which the subject citations
were issued resulted in the most citations the company ever received in a
single inspection. Tr. 77. Williams stated he decided to use the present case
to “see how the system works.” Tr. 19. He credited the Secretary’s counsel with
perseverance and patience in explaining to him how violations are assessed and
how they are contested. The court also recognizes and commends counsel’s
willingness to add a teaching function to her many other duties. In going out
of her way to assist Williams counsel acted in the best interests of her client
and the public. The court also commends Williams for his efforts to better
understand the Mine Act. The court recognizes the company was engaged in a
learning experience that required a more than ordinary investment of counsel
for the Secretary’s and the court’s time, but the court believes that the
experience was worthwhile and that it will lead to a safer mine and a more
harmonious relationship between the company and the agency.

[4] At the time the
mine consisted of the quarry where slate was extracted, the mill buildings in
and around which slate was processed and other structures related to the
business. Tr. 41. The mine employed approximately 45 to 48 people. Tr. 43. Burton
described the facility as “one of the larger slate mines in the region.” Tr.

  1. Burton stated if he were to rate the mine for cleanliness and organization
    he would consider it “about average.” Tr. 69.

[5] According to Burton,
the process of cleaving the slate requires the use of pneumatic hammers to
“size the slate for thickness.” Tr. 51.

[6] Indeed, as
Burton noted, such a fatal accident occurred in 2001 at a different
metal/nonmetal facility. Tr. 53-54; see Gov’t Exh. 9(b).

[7]
The court fully agrees with Williams that most miners would recognize the
propane tanks and would know not to produce an ignition source in their
presence. Tr. 76.

[8] Burton
recognized that the system as a whole might have a pressure relief valve and
that if it did the likelihood of an injury would be much reduced, but in his
opinion the presence of a valve or gauge elsewhere in the system did not
invalidate the violation. Tr. 119. Burton also agreed that the PSI rating of
the tanks was lower because they were part of a system and that this too
reduced the likelihood of an injury arising from the cited conditions. Tr.
120-21.

[9] A “tick tracer”
is a pocket tool designed to detect the presence of voltage in a wire or in a
piece of equipment without actually making direct contact with the conductor or
energized part.

[10] Williams seemed
to agree with Burton that although work on the panels was subcontracted, the
company should have known the circuits were not labeled. He stated that
although it was the electrical contractor who “screwed up,” “I should have
caught it.” Tr. 160; see also Tr. 162.

[11] Burton
described the guards as “”two pieces [of plastic] that join together.” Tr. 176.

[12] Burton
explained the “pen tip” test as follows:

I don’t put my
hand against the glass. I take [a] pen tip and I go

across
the glass, and if that pen tip clicks when it comes to a crack

I
know that the two pieces of glass are not on the same plane and

it
indicates that there is a raised crack in the glass and a cut hazard

to a miner’s
hand.

Tr.
215-16.

[13] However, when
Burton was asked how likely it was a miner would clean the windshield in August
when the cab side windows would be rolled up to take full advantage of the
cab’s air conditioning system, Burton responded that it was “tough to say.” Tr.
223.

[14] The court
discounts the hazard allegedly posed by the driver touching the cracks with his
bare hand. Burton’s finding of this hazard was primarily premised on the driver
responding to Burton’s pen tip test, an action that was unlikely to recur.

[15] There are a
total of five magazines at the mine. Tr. 277.

[16] Burton
explained that ATF personnel from time to time inspect blasting operations at
mines.

[17] Burton stated
that he “took [the blaster] at his word.” Tr. 266.

[18] The inspector
mistakenly cited the condition as violating section 56.4200(a)(1). At the
hearing counsel for the Secretary moved to amend the citation to allege a
violation of section 56.4201(a)(1). The company did not object, and the motion
was granted. Tr. 310-11.

[19] Burton
misspoke; he meant to say that monthly examinations are required under section
56.4201(a)(1).

[20] Burton put the
number between a dozen and twenty-five. Tr. 309.

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

[22] This is the
last decision the court will author. The court thanks all who have appeared
before it for the civility and respect they have shown the court and one
another. The court believes it is decorum grounded in the recognition that
through playing our parts to resolve disputes that inevitably arise over the
interpretation and implementation of the Mine Act and the regulations
promulgated thereunder, we are furthering the law’s fundamental purpose – to
enhance “the health and safety of [the industry’s] most precious resource – the
miner.” 30 U.S.C. § 802 (a). It has been a privilege for the court to be part
of the process.

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