Secretary of Labor v. Tilcon New York, Inc.

Plain-English summary

Tilcon New York runs the Haverstraw Quarry and Mill, a surface granite mine in Rockland County, New York. An MSHA inspector wrote sixteen citations over a December 2015 and January 2016 inspection, and the parties settled nine of them before or during the hearing. Judge Margaret A. Miller decided the remaining seven, which covered an unbermed elevated roadway above a 50-foot drop-off, loose material on a highwall above working miners, four guarding conditions, and a bent step used to service a loader. She upheld six of the seven and vacated one guarding citation after finding the pulley area was too hard to reach for contact to be reasonably possible. She raised the gravity on the roadway citation, finding injury reasonably likely rather than unlikely, and increased that penalty from $100 to $1,000. Tilcon's argument that past inspections had approved the same conditions failed, because a standard whose plain language is clear gives adequate notice on its own and inconsistent enforcement does not change that. With the approved partial settlement, the total penalty came to $4,458, above the $3,758 originally proposed.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.9300, 56.3200, 56.14112(b), 56.14107(a), and 56.11001
• Outcome: Six contested citations affirmed (one with gravity increased to significant and substantial), one vacated, partial settlement of nine citations approved, total penalty $4,458.
• Key point: A fair-notice defense built on past inspections that did not cite the same condition fails when the standard's plain language already makes the requirement clear.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19 th
STREET, SUITE 443

DENVER, COLORADO
80202-2500

TELEPHONE:
303-844-5266 / FAX: 303-844-5268

October 6, 2016

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION,
(MSHA),

Petitioner,

v.

TILCON
NEW YORK INC,

Respondent.

CIVIL
PENALTY PROCEEDINGS

Docket
No. YORK 2016-66

A.C.
No. 30-00075-402400

Docket
No. YORK 2016-72-M

A.C.
No. 30-00075-404552

Mine:
Haverstraw Quarry & Mill

DECISION AND
ORDER

Appearances:   Margaret
Temple and Suzanne Demitrio Campbell, U.S. Department of Labor, Office of the
Solicitor, New York, New York, for Petitioner;

Kevin
R. Keating, Oldcastle Law Group, Atlanta, Georgia, for Respondent.

Before:                        Judge
Miller

These cases are
before me upon petitions for assessment of civil penalties filed by the
Secretary of Labor pursuant to Section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815(d) (“the Act”). These dockets involve sixteen
citations issued pursuant to Section 104(a) of the Act with originally proposed
penalties totaling $3,758.00. Prior to hearing, the parties agreed to settle six
of the citations from Docket No. YORK 2016-66 and one from Docket No. YORK
2016-72. The Secretary vacated a second citation from YORK 2016-72 just prior
to hearing, and the parties settled a third citation from that docket during
the hearing. The settlement is addressed below. The parties presented testimony
and evidence regarding the remaining seven citations at a hearing held in Poughkeepsie,
New York, on July 27, 2016. Based upon the parties’ stipulations, my review of
the entire record, my observation of the demeanors of the witnesses, and
consideration of the parties’ legal arguments, I make the following findings
and order.

The Haverstraw Quarry and Mill is a
surface granite mine in Rockland County, New York, operated by Tilcon New York,
Inc. The parties have stipulated that Tilcon is an “operator” as defined in
Section 3(d) of the Mine Act, 30 U.S.C. § 803(d), and is subject to the
jurisdiction of the Commission. Ex. P-1. Tilcon New York operates four quarries
as well as several other plants, and has approximately 275 to 300 employees. The
Haverstraw Quarry is one of the company’s larger quarries. A history of
assessed violations at the mine was admitted as Exhibit P-17.

On December 28, 2015, Inspector Brian
Righi traveled to the Haverstraw Quarry to conduct a general inspection. Righi
also returned to the mine the following day and on January 5 and 6. Righi has
been a mine inspector for four years and estimated that he has conducted 141
inspections. He has attended the required MSHA training. Prior to becoming an
inspector, he worked 15 years in the mining industry, including work on
crushers, conveyors, and various safety and health matters.  

I.       
APPLICABLE
PRINCIPLES OF LAW

The citations issued by Righi have been designated with
various levels of negligence and several have been designated as significant and
substantial violations. The Secretary has the burden of proof and the mine
operator has the burden to prove any defenses it may raise, including the issue
of fair notice.

A.     Establishing a
Violation

To prevail on a penalty petition, the Secretary
bears the burden of proving an alleged violation by a preponderance of
evidence. RAG Cumberland Res. Corp. , 22 FMSHRC 1066, 1070 (Sept. 2000), aff’d
272 F.3d 590 (D.C. Cir. 2001); Jim Walter Res., Inc. , 9 FMSHRC 903, 907
(May 1987). The Secretary may establish a violation by inference in certain
situations, but only if the inference is “inherently reasonable” and there is
“a rational connection between the evidentiary facts and the ultimate fact
inferred.” Garden Creek Pocahontas Co ., 11 FMSHRC 2148, 2152-53 (Nov. 1989).

B.      Significant and
Substantial

A “significant
and substantial” (“S&S”) violation is described in Section 104(d)(1) of the
Mine Act as a violation “of such nature as could significantly and
substantially contribute to the cause and effect of a coal or other mine safety
or health hazard.” 30 U.S.C. § 814(d)(l). A violation is properly designated
S&S “if based upon the particular facts surrounding that violation, there
exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum
Co. , 3 FMSHRC 822, 825 (Apr. 1981).

In Mathies
Coal Co. , the Commission established the standard for determining whether a
violation is S&S:

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

6 FMSHRC 1, 3-4
(Jan. 1984).

The second
element of the Mathies test addresses the likelihood of the occurrence
of the hazard the cited standard is designed to prevent. Newtown Energy, Inc .,
38 FMSHRC __, No. WEVA 2011-283, slip op. at 5 n.8 (Aug. 29, 2016). The Commission
has explained that “hazard” refers to the prospective danger the cited safety
standard is intended to prevent. Id. at 6. In Newtown , for
instance, for a violation of a standard requiring that equipment be locked out
and tagged out while electrical work is being performed, the Commission
considered the hazard of a miner working on energized equipment. Id . The
likelihood of the hazard occurring must be evaluated with respect to “the
particular facts surrounding the violation.” Id. ; see also McCoy
Elkhorn Coal Corp ., 36 FMSHRC 1987, 1991-92 (Aug. 2014); Mathies , 6
FMSHRC at 4. At the third step, the judge must assess whether the hazard, if it
occurred, would be reasonably likely to result in injury. Newtown , slip
op. at 5. The existence of the hazard is assumed at this step. Id .; Knox
Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148, 161-62 (4th Cir. 2016). As
with the likelihood of occurrence of the hazard, the likelihood of injury
should be evaluated with respect to specific conditions in the mine. Newtown,
slip op. at 7. Finally, the Commission has held that the S&S
determination should be made assuming “continued normal mining operations.” McCoy ,
36 FMSHRC at 1990-91.

C.     Negligence

The Secretary’s
regulations categorize negligence into five categories, from “no negligence” to
“reckless disregard.” 30 C.F.R. § 100.3, Table X. The Commission has
emphasized, however, that these regulations apply to the Secretary’s proposal
of penalties only, and are not binding on the Commission. Brody Mining, LLC ,
37 FMSHRC 1687, 1701 (Aug. 2015). The Commission instead directs its judges to
“evaluate negligence from the starting point of a traditional negligence
analysis . . . . Under such an analysis, an operator is negligent if it fails
to meet the requisite standard of care—a standard of care that is high under
the Mine Act.” Id. at 1702. In evaluating an operator’s negligence, the
judge should consider “what actions would have been taken under the same
circumstances by a reasonably prudent person familiar with the mining industry,
the relevant facts, and the protective purpose of the regulation.” Jim
Walter Res ., 36 FMSHRC 1972, 1975 (Aug. 2014).

While the
Secretary’s regulations focus on the presence or absence of mitigating
circumstances in determining the level of negligence, 30 C.F.R. § 100.3, the Commission
has indicated that Commission judges are not limited to this analysis and “may
find ‘high negligence’ in spite of mitigating circumstances or may find
‘moderate’ negligence without identifying mitigating circumstances.” Brody ,
37 FMSHRC at 1702-03. High negligence is characterized by “an aggravated lack
of care that is more than ordinary negligence.” Id . at 1703.

D.    
 Fair
Notice

Where the language of a regulatory
provision is clear, the provision must be enforced as written unless the
regulator clearly intended a different meaning, or unless interpreting the
language as it is written would lead to absurd results. Dyer v. United
States , 832 F.2d 1062, 1066 (9th Cir. 1987); Island Creek Coal Co .,
20 FMSHRC 14, 18 (Jan. 1998). If, however, the standard is “silent or ambiguous
with respect to the specific point at issue,” the court must defer to the
agency’s interpretation of its own regulation “as long as it is reasonable.” Small
Mine Devel ., 37 FMSHRC 1892, 1894 (Sept. 2015) (quoting Tenet
HealthSystems Healthcorp. v. Thompson , 254 F.3d 238, 248 (D.C. Cir. 2001));
see also Auer v. Robins , 519 U.S. 452, 461 (1997) (holding that an
agency’s interpretation of its own regulation is “controlling unless plainly
erroneous or inconsistent with the regulation”).

When an agency’s
interpretation is the basis for imposition of a civil penalty, “a separate
inquiry may arise concerning whether the respondent has received ‘fair notice’
of the interpretation it was fined for violating. ‘[D]ue process … prevents …
deference from validating the application of a regulation that fails to give
fair warning of the conduct it prohibits or requires.’” Island Creek , 20
FMSRHC at 24 (quoting Gates & Fox Co. v. OSHRC , 790 F.2d 154, 156
(D.C. Cir 1986)). In evaluating whether a standard provides fair notice to an
operator, the Commission applies the “reasonably prudent person” test:
application of a standard to a set of facts is consistent with fair notice if
“a reasonably prudent person familiar with the mining industry and the protective
purposes of the standard would have recognized the specific prohibition or
requirement of the standard.” Ideal Cement Co ., 12 FMSHRC 2409, 2416
(Nov. 1990).

In applying the
reasonably prudent person standard, the Commission has taken into account a
wide variety of factors, including the text of the regulation, its placement in
the overall regulatory scheme, explicit definitions in the regulations or the
Act, the regulatory history, the consistency of the agency’s enforcement, and whether
MSHA has published notices informing the regulated community of its
interpretation . See Hecla Ltd., 30
FMSHRC __, No. WEST 2012-760-M (Aug. 30, 2016); Wolf Run Mining Co ., 32
FMSHRC 1669, 1682 (Dec. 2010); Island Creek , 20 FMSHRC at 24-25; Morton
Int’l, Inc ., 18 FMSHRC 533, 539 (Apr. 1996); Ideal Cement Co ., 12
FMSHRC at 2416 . Also relevant is the
testimony of the inspector and the operator’s employees as to whether they
believed the cited condition to be a violation. Island Creek, 20 FMSHRC
at 24-25. Finally, the Commission has looked to evidence of accepted safety
practices in the industry. See BHP Minerals Int’l Inc. , 18 FMSHRC
1342, 1345 (Aug. 1996); Ideal Cement , 12 FMSHRC at 2416.

II.    
FINDINGS
OF FACT AND CONCLUSIONS OF LAW

The
seven citations discussed below remain in dispute and I make the following
findings with regard to each.

Citation
No. 8923674

In the course of
his inspection, Inspector Righi observed an elevated highwall roadway leading
to an active drilling area. The roadway had a drop-off of approximately 50
feet. It was unbermed for about 200 feet on one side, but orange barrels had
been placed at the entrance to the roadway. The barrels were labeled with a
warning that the area was unbermed, but the warning was in relatively small
type and could not be seen without getting close to the barrels. See Exs.
R-H, P-2. Although Eric Kechejian, Tilcon’s safety director, stated that the
barrel cones were heavy, it was possible to move them. Kechejian explained that
the mine had been using the barrels in place of berms for many years and that
past inspectors had approved.

Righi testified
that the roadway became an active drilling area farther down the road. The
portion near the barrels was used by drilling, blasting, and maintenance
vehicles, but was not heavily traveled. Righi understood that blasting and
drilling at the mine were performed by a contractor and were done regularly but
not every day. The mine’s plant manager, George Lindbloom, testified that the
area was being actively mined at the time of the inspection and that berms had
been removed where drilling and blasting were going to take place. Righi did
not agree that the cited portion of the road was an active mining area.  

Righi was
concerned that the barrel cones could be easily moved and did not effectively
impede entry. He cited the mine for a violation of 30 C.F.R. § 56.9300(d). The
Secretary requires that berms or guardrails be provided “on the banks of
roadways where a drop-off exists of sufficient grade or depth to cause a
vehicle to overturn or endanger persons in equipment.” 30 C.F.R. § 56.9300(a). However,
if the roadway is “infrequently traveled and used only by service or
maintenance vehicles,” the mine may instead comply with the standard by providing
all of the following alternative safety measures: 1) locked gates at the
entrance points of the roadway; 2) signs warning that the roadway is unbermed;
3) delineators along the perimeter of the roadway to indicate the edges and
attitude of the roadway; 4) a maximum speed limit posted on the roadway; 5)
road surface traction that is not impaired by weather conditions, or corrective
measures to improve traction in the event of bad weather conditions. 30 C.F.R.
§ 56.9300(d). The inspector cited the mine under this alternative subsection.

Tilcon disputes that
the roadway was “infrequently travelled,” arguing that it was an active mining
area. However, Tilcon acknowledges in its post-hearing brief that the area was
a “roadway.” Resp. Br. at 8. It is clear from the testimony that the area had a
drop-off of 50 feet. Thus, regardless of whether the exceptions in § 56.9300(d)
were applicable, the area was subject to § 56.9300(a), the general provision
requiring berms. Tilcon does not claim to have installed berms. Nor does it
claim to have installed locked gates and delineators along the perimeter of the
roadway to satisfy the exception in § 56.9300(d). Accordingly, I find that a
violation occurred.

Tilcon argues
that it was not provided with fair notice of the inspector’s interpretation,
but I reject this argument. I do not credit the safety director’s testimony
that the exact configuration had been observed by other inspectors without a
citation issued. While inspectors may have been in the area on previous
inspections, there is no credible evidence to show that the exact conditions
existed and were not cited. Additionally, a reasonable miner would recognize
that the barrels that were in place would not keep a miner from driving along
the cited area that was not bermed.

The Secretary
alleges that the violation was the result of low negligence, that it was
unlikely to result in injury, that if injury did occur it would be fatal, and
that the violation was not S&S. I agree that the negligence was low, since there
was some genuine disagreement about the nature of the road. The testimony and
the record support a finding that the violation was much more serious than the
inspector indicated and should have been marked as significant and substantial.
There is no question that persons travelled near the entrance to this road. They
would not have been kept out or warned by the cones with the warning in small
lettering. The drillers and blasters who used the area could easily over-travel
on the road and drop down a 50-foot drop-off. For that reason, I find that
injury was reasonably likely to occur and the gravity was greater than the
citation indicates. I assess a penalty of $1,000.00.

B.      Citation
No. 8923675

Righi observed
loose material extending the length of the 140 bench highwall. There was loose
gravel as well as a large boulder at one point on the wall. He did not observe
falling material, but observed a residual pile along the base of the wall. Righi
also testified that the mine’s blasting method involved drilling past what would
become the next bench, and that the top edge of the wall was therefore likely
fractured. He did not believe the mine had scaled recently, and a miner told
him the company did not like to scale.

Lindbloom
testified that the material on the highwall was compacted rather than loose and
unconsolidated. The highwall is inspected daily, and Lindbloom explained that
the miners who work in the area are familiar with the geology, know how to
identify unsafe conditions, and are empowered to address them. The wall was
scaled to terminate the citation, and miners told Lindbloom they believed the
wall was less safe after it was scaled because the rock had been loosened. Lindbloom
stated that the boulder was a remnant of an earlier road, was set back about a
foot, was angled away from the edge, and was not in danger of falling over the
highwall.

Righi observed three
miners working in the area around the highwall, hauling material from a muck
pile with a loader and haul trucks. The boulder was directly above them. Righi stated
that loading out the muck pile involved driving along the base of the highwall.
Lindbloom disagreed, saying that the loader operator would actually be at least
30 feet from the bottom of the highwall. He stated that the muck pile was at
the base of the highwall and extended six to ten feet, and the loader operator
would be loading out of the pile with the scoop end of the loader facing the
wall. He stated that the muck pile is against the wall and is intended to keep
miners from getting too close to the wall. However, Righi observed a tire track
close to the wall. There were no warnings or barricades to keep workers from
walking next to the face.

Righi issued
Citation No. 8923675 for a violation of 30 C.F.R. § 56.3200, which requires
that “Ground conditions that create a hazard to persons shall be taken down or
supported before other work or travel is permitted in the affected area.” The
Commission has explained that the plain language of § 56.3200, when read in
conjunction with §§ 56.3130 and 56.3131, requires operators to “maintain
highwall stability and correct hazardous conditions before work or travel takes
place.” Connolly-Pacific Co. , 36 FMSHRC 1549, 1553 (June 2014). The
preamble to § 56.3200 states that it is a “performance-oriented” standard with
“broad application” that applies “wherever such a hazard is present.” 51 Fed. Reg.
36,192 (Oct. 8, 1986). In applying broadly worded standards, the Commission
uses the reasonably prudent person standard, asking “whether a reasonably
prudent person would have ascertained the specific prohibition of the standard
and concluded that a hazard existed.” U.S. Steel Mining Co., LLC , 27
FMSHRC 435, 439 (May 2005).  

I credit the
testimony and reasoning of Righi and find that the rocks and loose material at
the top of the highwall presented a hazard to those working below. An
experienced MSHA inspector’s opinion that a hazard exists is entitled to
substantial weight. Buck Creek Coal Inc. v. MSHA , 52 F.3d 133, 135 (7th
Cir. 1999); Harland Cumberland Coal Co ., 20 FMSHRC 1275, 1278-79 (Dec.
1998). Tilcon offered little evidence of the general condition of the highwall
and its methods for controlling it, and I find no reason to doubt the
inspector’s descriptions. Righi explained that he observed loose material and
both large and small rocks. Any freezing of the ground, blasting in the area,
or removal of material could easily cause the rocks to fall. A reasonably
prudent person would have understood that scaling and berms were necessary. I also
credit the inspector’s finding that miners were working at the base of the
highwall and were exposed to a fall hazard. Even a small rock falling from that
height could crash through the windshield of a piece of equipment and injure a
miner.

I find further
that the violation was significant and substantial. Applying the Mathies
criteria, there was a violation of a mandatory standard which created the
hazard of rock and loose material falling from a height above and hitting
someone working below. The hazard was likely to occur because the mine’s drilling
methods had destabilized the highwall, making a fall likely, and three miners
were working at the base. Falling rock or loose material that hit a truck or
loader would be likely to crush the top or crash through the windshield, causing
death or serious injury. In view of the evidence that the miners had not scaled
recently or installed berms, I also accept the designation of moderate
negligence. I assess a penalty of $807.00 as proposed.

C.     Citation No. 8923680

Inspector Righi
issued a number of guarding violations during the inspection. Citation No. 8923680
relates to an area guard for a large cone crusher. The guard is a fence and
gate enclosing the crusher, and is intended to protect miners from contact with
the V-belts and drive pulleys that operate the cone crusher. Additional guards
for the belts and pulleys are not provided inside the fence, so a miner
entering through the gate could come in contact with the moving parts. Righi
observed that the gate was secured with a nut and bolt and labeled with a “Do
Not Enter” sign. However, the nut and bolt were loose and came apart when he touched
the gate. Righi believed that the nut and bolt did not adequately secure the
area and that a padlock should have been used instead. He explained that the
gate was easily defeated and someone could easily enter the area and access the
moving parts. However, he did not believe that the condition was likely to
cause injury due to the presence of the gate and the “Do Not Enter” sign.

Lindbloom
testified that the mine has a policy prohibiting miners from entering areas to
work on moving components unless they have been locked out and tagged out. He
stated that miners would not enter the area to inspect it, because they conduct
inspections from outside the fenced area. He also stated that the mine had been
using the guard in this form for 11 or 12 years. Kechejian said that the mine
has not been cited for using the nut and bolt in the past.

Righi cited the
mine for a violation of § 56.14112(b), which provides that “Guards shall be
securely in place while machinery is being operated, except when testing or
making adjustments which cannot be performed without removal of the guard.” 30
C.F.R. § 56.14112(b). He designated the citation as resulting from low
negligence and being unlikely to cause injury, noting that the mine had made
attempts to secure the area and that miners were unlikely to enter it. 

Tilcon argues
that the guarding standards are intended to address inadvertent contact with
machine parts, but that in this case, a miner would only contact the parts if
he intentionally entered the gated area. However, Righi testified that when he
touched the gate, the nut and bolt came apart. The photographs also show that
the gate was located at the bottom of a short stairway, so someone could fall
into the gate. See Exs. P-5, R-B. Righi stated that the moving machine
parts were right inside the gate, where someone could contact them.

I find that the
gate as observed by Righi was not secure, and therefore a violation has been shown.
Tilcon argues that it did not have fair notice of the requirement because past
inspectors had permitted the gate in this condition. However, I find that the
Secretary’s interpretation of the regulation was clear in this instance. A gate
that opens when touched is clearly not “securely in place” as required by the
plain language of the standard. “[W]hen the meaning of a standard is clear
based on its plain language, it follows that the standard provided the operator
with adequate notice of its requirements.” Austin Powder Co ., 29 FMSHRC
909, 919 (Nov. 2007) (internal quotations omitted) (quoting LaFarge Constr.
Materials , 20 FMSHRC 1140, 1144 (Oct. 1998)). An inconsistent enforcement
pattern by the Secretary does not change that result. Id . at 920.

While I believe
this violation was more serious than the inspector indicated, I defer to his
assessment that the violation was unlikely to cause injury and was the result
of low negligence. Therefore, I assess a $100.00 penalty as proposed by the
Secretary.

D.     Citation No. 8923683

Citation No.
8923683 also alleges a violation of § 56.14112(b). A guard was provided around
the drive pulley for the motor on the Diester scalping screen, which is used to
size and sort rock. Righi observed that the guard, a piece of expanded metal,
had been pushed up in one location, exposing the belt and pulley. Photographs
introduced by the Secretary show the small gap in the guard. Ex. P-6. The
exposed area was small, but large enough for someone to fit a hand through. It
was located on the top and side of the motor and so not easily accessible. The
area would be accessed via a metal walkway to the side of the motor. While
Lindbloom pointed out that the general area was roped off with a sign saying
“Danger Falling Rocks,” the area could be accessed for clean-up, maintenance,
or to inspect nearby fire extinguishers.

The witnesses
differed on the potential for a person to contact the moving parts. Lindbloom stated
that it would be impossible for someone to contact the pulley because the gap in
the guard was narrow, it was four to five feet off the ground, and the walkway
was two to three feet away from the machine. Righi agreed that he came within
two feet of the spot. But he believed it would be possible for someone to trip
on a stone on the walkway and put his hand into the gap to catch himself. I
credit the testimony of the inspector on this point. The mine also argues that its
lock-out/tag-out policy would prevent any person from contacting moving machine
parts. Resp. Br. at 5. However, the purpose of guarding standards is to prevent
inadvertent contact. Thompson Bros. Coal Co ., 6 FMSHRC 2094, 2097 (Sept.
1984). Such contact is not fully addressed by a lock-out/tag-out policy.

The
photographs show a small unguarded area on the scalping screen. While the spot
is not easily accessed, it can be done. Given the falling material around the
screen and the need to access the equipment periodically, the unguarded area
presented a hazard. Lindbloom and Kechejian stated that the guard had been in
the position observed by Righi for seven or eight years and had never been
cited. However, the inspector’s photographs show that the guard was at an angle
and appears to be out of place. I find therefore that the guard was not
“securely in place,” and that a violation existed. I reject the fair notice defense
raised by the mine based on past inspections that were not substantiated. Since
the gap was on top of the motor where it was unlikely to be reached, I agree
with the inspector that the violation was unlikely to cause injury. The
inspector designated the citation as resulting from moderate negligence because
it was open and obvious, and I agree. I assess a $100.00 penalty as proposed by
the Secretary.

E.      Citation No.
8923686

Citation No. 8923686
involves a head pulley guard on a V-belt, a conveyor used to move stone. Righi
observed that a section was missing on the lower part of guard, and no guard
was provided on the back side of the pulley drive. Exhibit P-9 includes
photographs showing the gaps where there are missing guards. Righi believed
that the guards were not adequate to protect miners from coming into contact
with moving parts. He believed miners would be in the area to grease and
maintain the equipment.

Tilcon’s
witnesses showed that the pulley was difficult to access: a miner would have to
walk across 500 feet of catwalk, pass through a chain, go down a ladder and up
another ladder, and go through a waist-high gate secured with a nut and bolt. Lindbloom
and Kechejian testified that greasing on the machinery was done remotely and
inspections were done from below, so the only reason a miner would be in the
area would be for maintenance on the belt, in which case the equipment would be
locked out. Righi argued that miners would also need to enter the area for
monthly fire extinguisher checks and periodic housekeeping.

Righi cited the
mine for a violation of 30 C.F.R. § 56.14107(a), which requires that “Moving
machine parts shall be guarded to protect persons from contacting gears, sprockets,
chains, drive, head, tail, and takeup pulleys, flywheels, couplings, shafts,
fan blades, and similar moving parts that can cause injury.” Because only a
small portion of the pulley was not guarded, Righi determined that the
violation was not S&S.

The inspector’s
testimony and photos indicate that there were moving machine parts that were
not completely guarded. However, the Commission has held that for a guarding
standard to be applicable there must be a “reasonable possibility of contact
and injury.” Thompson Bros ., 6 FMSHRC at 2097. In assessing whether
there is a reasonable possibility of contact, judges are instructed to consider
“all relevant exposure and injury variables, e.g., accessibility of the machine
parts, work areas, ingress and egress, work duties, and … the vagaries of human
conduct.” Id . Here, I credit the statements of Tilcon’s witnesses that most
maintenance of the belt was done remotely and that it was extremely difficult
to access the area. Anyone going into that remote area would de-energize the
equipment prior to moving near the small unguarded spot. Accordingly, I find
there was no reasonable possibility of a person contacting moving machine
parts, and additional guarding was not required. Therefore, this citation is
vacated.

F.     
Citation
No. 8923690

Citation No. 8923690
alleges another violation of § 56.14107(a) for inadequate guarding. Righi
observed that a section next to the electrical motor on the no.6 crusher was
not guarded, exposing the V-belts and pulley. The unguarded section was
approximately 2.5 by 12 inches. The area was about four or five feet above the walking
area, leading the inspector to believe that someone could slip and fall and
contact the moving parts. Lindbloom stated that a second angled guard by the motor
would prevent anyone from touching the unguarded spot, and that a person could
not contact the motor without intentionally reaching through the guard. The
mine produced photographs showing the second angled guard. Ex. R-G. However,
Righi stated that the second guard did not prevent him from walking right up to
the problem area, and that the photograph was misleading. Lindbloom stated that
the crusher stands alone and can only be accessed via a separated platform. He
stated that the only time a miner would be in the area while the machine was
running would be to view the moving parts or to hose off the platform. For
other maintenance, the machine would be locked out.

I credit the
inspector’s observation and findings and find that there is a violation. Because
the unguarded area was small, it may have escaped miners’ attention. I
therefore find that negligence was low. The violation was unlikely to cause
injury due to the size and location of the gap. I assess a $100.00 penalty as
proposed by the Secretary.

G.     Citation No.
8923694

Citation No. 8923694
concerns a bent step near the left rear engine compartment of a loader. The parties
agree that the machine operator had other means of accessing the cab, and the
step was not intended for that use. However, Righi believed that a fueler and
oiler would use the step daily when servicing the machine. A person using the
step could slip and fall since it was not a flat surface. Lindbloom testified
that the maintenance crew typically does not use the step anyway because it is
too high. Instead, they back the fuel truck directly up to the machine or use a
ladder they carry with them. The condition had been reported in a pre-shift
examination several months earlier, but the maintenance department determined
that the step was safe and did not repair it.

Righi issued Citation
No. 8923694 for a violation of 30 C.F.R. § 56.11001, which requires that “Safe
means of access shall be provided and maintained to all working places.” He
designated the citation as S&S and resulting from high negligence.

I find that the
engine of the loader was a “working place,” for purposes of fueling, oiling,
and general maintenance. The step was a means of accessing the engine, and the
standard thus required that it be maintained in a safe condition. Exhibit P-14
clearly shows that the step is bent. I agree with Righi that this created a
hazard. In the event that a miner was not looking and stepped up onto the
slanted step, he would be likely to fall backwards and be injured. I therefore
find that a violation has been shown. I find that a reasonable person familiar
with the mining industry would have understood that the bent step was not
properly “maintained” as required by the standard, and so reject Tilcon’s fair
notice argument. Resp. Br. at 10-11; see Ideal Cement Co ., 12 FMSHRC
2409, 2416 (November 1990).

Applying the Mathies
S&S criteria to this citation, I find that the Secretary has proven a
violation of a mandatory standard. The hazard created by the violation is that
someone using the step could fall backward onto the ground. I find that this
hazard was likely to occur. While Tilcon claims that the maintenance crew used
a ladder rather than the step, someone could easily forget and use the step. It
had not been removed or flagged in any way. Such a person could easily fall
when they stepped on the slanted surface, expecting a flat one. If the hazard
occurred, a person falling backward onto the ground from a height of three feet
would likely be injured. An injury of broken bones or back or neck injury would
be likely, which are reasonably serious in nature. Therefore, I find the
violation is S&S.

Given that the
condition had been reported to the mine operator but it chose not to repair the
step, the negligence is high. I assess the penalty of $1,203.00 as proposed by
the Secretary.   

III. PENALTIES

The principles
governing the authority of Commission Administrative Law Judges to assess civil
penalties de novo for violations of the Mine Act are well established. Section
110(i) of the Mine Act delegates to the Commission and its judges “authority to
assess all civil penalties provided in [the] Act.” 30 U.S.C. § 820(i). The duty
of proposing penalties is delegated to the Secretary. 30 U.S.C. §§ 815(a),
820(a). Thus, when an operator notifies the Secretary that it intends to
challenge a penalty, the Secretary petitions the Commission to assess the
penalty. 29 C.F.R. § 2700.28. The Act requires that in assessing civil monetary
penalties, the judge must consider six statutory penalty criteria: the operator’s
history of violations, its size, whether the operator was negligent, the effect
on the operator’s ability to continue in business, the gravity of the
violation, and whether the violation was abated in good faith. 30 U.S.C. §
820(i). In keeping with this statutory requirement, the Commission has held
that judges must make findings of fact on the statutory penalty criteria. Sellersburg
Stone Co ., 5 FMSHRC 287, 292 (Mar. 1983), aff'd , 736 F.2d 1147, 1152
(7th Cir. 1984). Once these findings have been made, a judge’s penalty
assessment for a particular violation is an exercise of discretion “bounded by
proper consideration of the statutory criteria and the deterrent purposes
underlying the Act’s penalty scheme.” Id . at 294; see also Cantera
Green , 22 FMSHRC 616, 620 (May 2000).

The history of
assessed violations has been admitted into evidence and shows nothing unusual
in the history, particularly as it relates to the guards. [1]
It shows eight violations in the 15-month period prior to the inspection, including
one guarding violation and several equipment violations. The parties agree that
the citations were abated in good faith and the mine has raised no defense of
ability to pay. The negligence and the gravity have been discussed above with respect
to each citation.

IV. PARTIAL
SETTLEMENT

The Secretary
has filed several motions to approve partial settlement, in which he represents
that the parties have agreed to settle nine of the sixteen citations in these
dockets. The Secretary has set forth the factual basis for the proposed
modifications. The Respondent has agreed to the proposed changes. The
originally assessed amount for the eight settled citations was $1,248.00 and
the proposed settlement amount is $1,148.00. The proposed settlement includes:

Citation No.

Originally Proposed Assessment

Settlement Amount

Modification

Docket No. YORK 2016-66

8923678

$100.00

$100.00

None.

8923681

$243.00

$243.00

Remove
S&S designation.

8923684

$100.00

$100.00

Modify
negligence from moderate to low.

8923685

$100.00

$100.00

Modify
negligence from moderate to low.

8923688

$100.00

$100.00

None.

8923689

$243.00

$243.00

None.

TOTAL

$886.00

$886.00

Docket
No. YORK 2016-72-M

8923691

$162.00

$162.00

None.

8923692

$100.00

$100.00

Modify
negligence from high to low.

8923693

$100.00

Vacate.

TOTAL

$362.00

$262.00

I accept the
representations and modifications of the Secretary as set forth in the motions
to approve settlement. I have considered the representations and documentation
submitted, find that the modifications are reasonable, and conclude that the
proposed settlement is appropriate under the criteria set forth in Section
110(i) of the Act. The citations listed above as settled are approved.  The
following chart sets forth the penalty amounts for each of the seven citations
that are subject to this decision.

Citation No.

Originally Proposed Assessment

Decision Amount

Modification

Docket No. YORK 2016-66

8923674

$100.00

$1,000.00

Modify
likelihood of injury from unlikely to reasonably likely.

8923675

$807.00

$807.00

None

8923680

$100.00

$100.00

None.

8923683

$100.00

$100.00

None.

8923686

$100.00

Vacate.

TOTAL

$1,207.00

$2,007.00

Docket
No. YORK 2016-72-M

8923690

$100.00

$100.00

Modify
negligence from moderate to low.

8923694

$1,203.00

$1,203.00

TOTAL

$1,303.00

$1,303.00

GRAND

TOTAL

$3,758.00

$4,458.00

V.     ORDER

The Secretary’s motions
to approve partial settlement are GRANTED . The Respondent is ordered to
pay an additional $3,310.00 total penalty as detailed in the findings above for
the seven contested citations. Respondent is hereby ORDERED to pay the
Secretary of Labor the sum of $4,458.00 within 30 days of the date of this
decision.

/s/ Margaret A. Miller

Margaret A.
Miller

Administrative
Law Judge

Distribution:
(U.S. First Class Mail)

Terrence
Duncan, Margaret Temple, Suzanne Campbell, U.S. Department of Labor, Office of
the Solicitor, 201 Varick Street, Room 983, New York, NY 10014

Kevin
R. Keating, Oldcastle Law Group, 900 Ashwood Parkway, Suite 600, Atlanta, GA
30338

[1] The history of violations submitted by the parties
omitted a portion of the fifteen month period. Ex. P-17. The court takes
judicial notice of the mine’s history of violations as indicated on the MSHA
website.